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United Nations Office on Drugs and , Regional Office for SouthAsia

September 2019

Copyright © UNODC 2019

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The designations employed and the contents of this publication, do not imply the expression or endorsement of any opinion whatsoever on the part of UNODC concerning the legal status of any country, territory or city, or its authorities, or concerning the delimitation of its frontiers or boundaries. EP 16/17, Chandragupta Marg, Chanakyapuri New Delhi - 110021, Tel: +91 11 24104964/66/68 Website: www.unodc. org/southasia/

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This is an internal UNODC document, which is not meant for wider public distribution and is a component of ongoing, expert research undertaken by the UNODC under the GLO.ACT project. The objective of this study is to identify pressing needs and offer strategic solutions to support the Government of and its enforcement agencies in areas covered by UNODC mandates, particularly the smuggling of migrants.

This report has not been formally edited, and its contents do not necessarily reflect or imply endorsement of the views or policies of the UNODC or any contributory organizations. In addition, the designations employed and the presentation of material in this publication do not imply any particular opinion whatsoever regarding the legal status of any country, territory, municipality or its authorities, or the delimitation of its frontiers or boundaries.

The boundaries and names shown, and the designations used in all the maps in this report, do not imply official endorsement or acceptance by the United Nations and the UNODC. TABLE OF CONTENTS

FOREWORD 1 ACKNOWLEDGEMENTS 3 ABBREVIATIONS 4 KEY TERMS USED IN THE REPORT AND THEIR DEFINITIONS/MEANINGS 5 EXECUTIVE SUMMARY 7

1. INTRODUCTION 11

1.1 Background 12 1.2 Purpose of the report 14 1.3 Overview of research and information collection process 15 1.4 Limitations of the report 16

2. SITUATION ANALYSIS OF SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 17

2.1 Situation analysis of smuggling of migrants from Nepal to the Americas 18 2.1.1 Overview 18 2.1.2 Push and pull factors in Nepal related to the smuggling of migrants, irregular migration and trafficking in persons 22 2.1.2.1 Push factors from Nepal 23

Case Study 1: Smuggling of Nepalese women to Haiti 24 Case Study 2: The Case of Trafficking to 26

2.1.2.2 Pull factors of destination/transit countries 27 2.1.3 Profile of smuggled and irregular migrants 28 2.1.4 Modus operandi and smuggling routes 31 2.1.4.1 Smuggling of migrants to the of America 31

Case Study 3: The smuggling of teenagers from India 38

2.1.4.2 Smuggling of migrants to 48 2.1.4.3 Smuggling of migrants and Trafficking In Persons from Nepal to South Africa 50 2.1.5 Profile of migrant smugglers 51

Case Study 4: Woman Smuggler 54 Case Study 5: The story of Rakhi Gauchan, the female smuggler of Nepalese origin in the US 55

2.1.6 Conditions and risks facing smuggled migrants 56

Case study 6: The journey of Bahadur Paija from Nepal 58

2.1.7 Fees and financing 59 2.2 Situational analysis of trafficking in persons from Nepal to South Africa and East Africa 61 2.2.1 Trafficking in dance bars in Kenya 61 2.2.2 Profile of trafficked victims 62 2.2.3 Modus operandi of traffickers for recruitment 63 2.2.4 Conditions and risks facing trafficked persons 63

3. LEGAL FRAMEWORK ON SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS 65 3.1 International instruments 66 3.1.1 The Global Compact for Safe, Orderly and Regular Migration 69 3.2 Regional initiatives 70 3.3 National legislative, regulatory and policy frameworks 70 3.3.1 Analysis of the legal and policy framework in Nepal on Smuggling of Migrants and Trafficking in Persons 70 3.3.1.1 Broad Legal Framework in Nepal on Smuggling of Migrants and Trafficking In Persons 70 3.3.1.2 Institutional and regulatory framework in Nepal on Smuggling of Migrants and Trafficking In Persons 73 3.3.1.3 Policies and Plans 75 3.3.2 Legal and policy framework in 76 3.3.2.1 Broad Legal Framework in Brazil on Smuggling of Migrants and Trafficking In Persons 77 3.3.2.2 Institutional and regulatory framework in Brazil on Smuggling of Migrants and Trafficking In Persons 78 3.3.2.3 Policies and Plans 78 3.3.3 Legal and policy framework in 79 3.3.3.1 Broad Legal Framework in Colombia on Smuggling of Migrants and Trafficking In Persons 79 3.3.3.2 Institutional and regulatory framework in Colombia on Smuggling of Migrants and Trafficking In Persons 79 3.3.3.3 Policies and Plans 80 3.3.4 Legal and policy framework in South Africa 80 3.3.4.1 Broad Legal Framework in South Africa on Smuggling of Migrants and Trafficking In Persons 80 3.3.4.2 Institutional and regulatory framework in South Africa on Smuggling of Migrants and Trafficking In Persons 81 3.3.4.3 Policies and Plans 81

4. RESPONSES TO SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS 83

4.1 Criminal justice responses 84 4.1.1 Corruption/ of officials 87 4.2 International co-operation 87 4.3 Protection and support for smuggled migrants and trafficked victims 88

5. RECOMMENDATIONS TO PREVENT SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS 91

5.1 Join the international legal framework on smuggling of migrants and trafficking in persons 92 5.2 Develop and strengthen national migrant smuggling and policies 93 5.3 Strengthen international cooperation to prevent and combat migrant smuggling 93 5.4 Enhance the collection, sharing and analysis of migrant smuggling and and related conduct data 95 5.5 Improve the investigation and prosecution of migrant smugglers and smuggling networks 96 5.6 Develop strategies to address prevention of migrant smuggling through targeted awareness programmes 97

ANNEXURE 1 - CASE STUDIES 98

Case Study 1: Smuggling of Nepalese women to Haiti 98 Case Study 2: The Case of Trafficking to Kuwait 100

BIBLIOGRAPHY 102 FIGURES

CHAPTER 1

Figure 1: Snapshot of international migrants Figure 2: Snapshot of male and female international migrants Figure 3: Top 20 desired destination countries among adults planning to migrate (percent)

CHAPTER 2

Figure 4: Remittances received in USD Figure 5: Map of South Asia Figure 6: Popular destination countries in East Asia, Southwest Asia, South Asia, Southeast Asia, and Oceania for the smuggling of migrants from South Asia Figure 7: Haiti, the new of choice to America Figure 8: Push and pull factors Figure 9: Number of South Asian migrants who attempted to enter the US through the southern without proper documentation Figure 10: Map of Central and Figure 11: One of the smuggling routes from Nepal-India to US from Ecuador Figure 12: South Asian migrants using Brazil as transit point for entry into the US Figure 13: Brazil to Bolivia or Colombia or Figure 14: Irregular migrants recorded in Colombia Figure 15: Men from Nepal and India board boats in Turbo, Colombia, headed north Figure 16: One of the routes from Nepal to the US through Brazil – Colombia - Darién Gap Figure 17: Number of Nepalese migrants traversing the Darién Gap Figure 18: Map of the Darién Gap and the break in the Pan-American Highway between Yaviza, Panama and Turbo, Colombia Figure 19: Nepalese migrants, heading to the US, lie exhausted on the ground at a after crossing the Darién Gap Figure 20: A chart shows the number and nationality of migrants captured in or near Paya, Panama, during a one-month period in early 2016 Figure 21: Migrants from Nepal and in the Darién Gap Figure 22: A map showing the route many migrants take with the help of smugglers to get to US and Canada Figure 23: Waiting to enter the United States Figure 24: From South Asia to Europe Figure 25: Route from India to UK via Russia Figure 26: Arrested Nepali national by the Peruvian National Figure 27: Katia calls the migrants her “baby chickens” Figure 28: A group of Nepalese en route to US, hiding in a Cambodian forest Figure 29: Snapshot of smuggler’s fees during transit to the US Figure 30: Trafficking of Nepalese girls to dance bars based in the Middle East and African countries

TABLES CHAPTER 2

Table 1: Key migration statistics for Nepal Table 2: Database of recorded Nepalese migrants in Brazil Table 3: Estimated costs of irregular migration

CHAPTER 3

Table 4: Country’s signatory status to relevant international human trafficking and migrant instruments – Nepal, Bangladesh and India Table 5: Country’s signatory status to relevant international human trafficking and migrant instruments – Brazil, Colombia and South Africa

FOREWORD

The United Nations Office on Drugs and Crime (UNODC) is the guardian of the United Nations Convention against Transnational (UNTOC), and its Supplementary Protocols: The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against Smuggling of Migrants by Land, Sea and Air. UNODC promotes the ratification of these instruments and assists Member States in their efforts to effectively implement them.

The UNODC is implementing in partnership with the International Organization for Migration (IOM) and the United Nations Children’s Fund (UNICEF), a four year (2015-2019) Global Action against Trafficking in Persons and the Smuggling of Migrants (GLO.ACT) project as a joint initiative with the European Union. As a part of this project, a Multi Country Study on Trafficking in Persons and Smuggling was commissioned to assist the Government of Nepal to strengthen its responses in addressing smuggling of migrants from Nepal to the United States of America and Europe.

This study represents a start towards developing a deeper, more nuanced understanding of the crime of migrant smuggling and its effects. It has been developed to enable an in-depth understanding of the phenomenon of migrant smuggling in Nepal, with a particular emphasis on the legal frameworks and current responses. The focus of this study has been to understand the situation from the migrant’s point of view, the push and pull factors, which take them on a perilous journey, and their expectations from the government when they are deported back to their country of origin. This study also offers insight into the complexity of the smuggling phenomenon, while also showing how much more information is needed, including cross-border linkages.

This report provides recommendations, which would hopefully assist the relevant ministries and agencies in Nepal to create an environment of safe migration, whilst successfully breaking criminal networks and punishing smugglers. The report calls for effective interagency synergies and international cooperation among countries of origin, transit and destination. Going forward, better use of the UNTOC and its Supplementary Protocols on the Smuggling of Migrants and Trafficking in Persons is needed to find solutions to these shared challenges.

Lastly, I would like to extend my deep appreciation to the governments of Nepal, Brazil, Colombia and South Africa for providing important assistance in undertaking this important study.

I continue to be optimistic that the extended partnership between UNODC, and the Government of Nepal will positively address migrant smuggling and human trafficking in Nepal and the wider region.

Representative UNODC ROSA

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 1 2 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL

This publication was produced by the UNODC Regional Office for South Asia, Nepal Programme Office, under the supervision of Binija Dhital Goperma, Program Coordinator, UNODC Regional Office for South Asia (ROSA), Nepal.

Study team: Binija Dhital Goperma, Program Coordinator, UNODC, ROSA; Prem Lamichhane, Under Secretary, Ministry of Home Affairs, Government of Nepal; Dipti Karki, Deputy Superintendent of Police, Nepal Police, Government of Nepal; Geeta Sekhon, Independent Research Consultant (Researcher and Author).

The publication also benefited from the work and expertise of Fernanda Patricia Fuentes Munoz, GLO.ACT National Project Officer in Brazil; Carlos Perez, Crime Prevention and Criminal Justice Officer in UNODC Vienna; Gilberto Zuletta Ibarra, GLO.ACT National Project Officer in Colombia; Banele Kunene, GLO.ACT National Project Officer in South Africa; and Reena Pathak, Project Officer, UNODC ROSA, Nepal.

Other important contributors to the report include João F. C. Chaves, Defensor Público Federal, Brazil; and Marcel Van Der Watt, Department of Police Practice, University of South Africa (UNISA), South Africa.

This document also benefited from revisions and inputs made by Suruchi Pant, Deputy Representative, UNODC ROSA; Morgane Nicot, UNODC HTMSS; Jesper Samson, UNODC Research; and Joana Wrabetz, GLO.ACT Policy Lead.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 3 ABBREVIATIONS

CRAI Center of Reference and Assistance CID Crime Investigation Department CNIg National Council of Immigration (Conselho Nacional de Imigração)

CONARE National Committee on Refugees CONATRAP National Committee to Fight against Trafficking in Persons (Comité Nacional de Enfrentamento ao Tráfico de Pessoas)

DOFE Department of Foreign Employment DPU Defensor Público Federal / Public Defenders Office

FEPB Foreign Employment Promotion Board GCC Gulf Cooperation Council Countries ILO International Labour Organization IOM International Organization for Migration IMDH Migrations and Institute INR Indian Rupees MOFA Ministry of Foreign Affairs MOLE Ministry of Labour and Employment MWCSC Ministry of Women, Children, and Senior Citizens

NASA National Aeronautics and Space Administration NCCHT National Committee for Controlling Human Trafficking NJTT National Joint Task Team NICTIP National Inter-Sectoral Committee for Trafficking in Persons NPF National Policy Framework NR Nepali Rupees PTT Provincial Task Teams on Trafficking in Persons UNODC United Nations Office on Drugs and Crime UNTOC United Nations Convention Against Transnational Organized Crime, 2000 US United States of America USD United States Dollars

4 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL KEY TERMS USED IN THE REPORT AND THEIR DEFINITIONS/ MEANINGS

AGGRAVATED CIRCUMSTANCES TO SMUGGLING

State Parties shall adopt such legislative and other measures as may be necessary to establish as aggravating circumstances to smuggling of migrants - that endanger, or are likely to endanger, the lives or safety of the migrants concerned, or that entail inhumane or degrading treatment, including for exploitation of such migrants [Article 6 (3), UN Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000].

FRAUDULENT DOCUMENT

Any travel or identity document that has been falsely made or altered in some material way by anyone other than a person or agency lawfully authorized to make or issue the travel or identity document on behalf of a State or any travel or identity document that has been improperly issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner or that is being used by a person other than the rightful holder [Article 3(c), UN Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000].

ILLEGAL ENTRY

Illegal entry refers to crossing without complying with the necessary requirements for legal entry into the receiving State [Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organized Crime].

A person may to cross a border illegally, either by concealing and hiding from , by evading altogether, by presenting false or falsified or fraudulently obtained documents or through some other illicit means. Illegal border crossing may be a criminal offence or an administrative offence, depending on the law of the country in question1.

MIGRANT

For the purposes of this report, a ‘migrant’ may be understood as any person who is moving or has moved across an international border or within a State, away from his/her habitual place of residence, regardless of (1) the person’s legal status, (2) whether the movement is voluntary or involuntary, (3) what the causes for the movement are, or (4) what the length of the stay is [International Organization for Migration (IOM)2].

IRREGULAR MIGRATION

Movement that takes place outside the regulatory norms of the origin, transit and destination countries. There is no clear or universally accepted definition of irregular migration. From the perspective of destination countries it is entry, stay or work in a country without the necessary authorization or documents required under immigration regulations. From the perspective of the sending country, the irregularity is for example seen in cases in which a person crosses an international boundary without a valid or or does not fulfill the administrative requirements for leaving the country.

1. UNODC Regional Office for Southeast Asia and the Pacific (2015) Migrant Smuggling in Asia - Current Trends and Related Challenges. UNODC, Bangkok. p. IV 2. IOM, Who is a Migrant. Retrieved from: https://www.iom.int/who-is-a-migrant. Accessed: 12 September 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 5 For the purpose of this report, irregular migration is also understood as the sum of migratory movements that involve entering or staying in an irregular way in a destination country. Such migratory movements can involve both regular and irregular movements before reaching the destination country3.

IRREGULAR MIGRANT

A person who, owing to unauthorized entry, breach of a condition of entry, or the expiry of his or her visa, lacks legal status in a transit or host country. The definition covers, inter alia, those persons who have entered a transit or host country lawfully but have stayed for a longer period than authorized or subsequently taken up unauthorized employment (also called clandestine or undocumented migrant or migrant in an irregular situation). For the purpose of this report, the definition also covers those persons who migrate with the objective of entering into or staying in the envisaged destination country in an irregular way4 .

MIGRANT SMUGGLER

A person who intentionally, in order to obtain, directly or indirectly, a financial or other material benefit, is involved in the smuggling of migrants5.

SMUGGLING OF MIGRANTS

Smuggling of migrants shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident [Article 3 (a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000].

SMUGGLED MIGRANT

A person whose illegal entry or stay in a country of which he or she is not a national or permanent resident has been facilitated by another person for deriving of financial or other material benefit6.

TRAFFICKING IN PERSONS

Trafficking in Persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of , of , of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the of others or other forms of sexual exploitation, forced labour or services, or practices similar to slavery, servitude or the removal of organs [Article 3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000].

3. UNODC (2015) p. IV 4. UNODC (2015) p. IV 5. UNODC (2015) p. V 6. UNODC (2015) p. V

6 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL EXECUTIVE SUMMARY

With an average of 1,500 Nepalese migrant workers7 leaving Nepal every day for foreign employment, international labour migration forms an important part of the lives of Nepalese citizens. Estimates, however, suggest that approximately 3.2 million migrants from Nepal are working with an irregular status in countries other than India8 . It thus helps to surmise that the number of Nepalese migrants in foreign countries, who may have utilized irregular channels, is more than the official data made available by the Government of Nepal. While most migration from Nepal occur legally, some of the greatest insecurities for migrants, and much of the public concern about migration, are associated with irregular migration or smuggling of migrants.

The primary objectives of this study are to: (i) understand the realities and challenges associated with smuggling of migrants from Nepal, primarily to the United States, and Europe; (ii) inform about migrant-smuggling legal frameworks and policies and other measures at the national level and (iii) foster international cooperation. The report also seeks to examine the nature of human trafficking and smuggling of Nepalese migrants to South Africa and to East Africa, mainly Kenya.

Although this report is focused on studying smuggling of migrants from Nepal, it also mentions smuggled migrants from Bangladesh and India (and sometimes , and ), because almost all the available research, literature, and field visit interviews point towards South Asians (namely Nepalese, Bangladeshis and Indians) normally using the same routes and similar smuggling networks.

The dynamics of smuggling of migrants, irregular migration and trafficking in persons in Nepal (and the South Asia region) is largely rooted in political instability, economic disparities, environmental factors, deep and food insecurity. Nevertheless, it also reflects the aspirations of relatively educated and wealthy individuals and families to settle in ‘western’ developed countries. The push factors emerge as far more influential than the pull factors, and the most significant push factor seems to be the need to escape from instability; either political or economic, or societal pressures that inhibit a stable life.

The profile of smuggled migrants from Nepal to the US and Europe suggests that theyare predominantly male, between the age groups of 20-35 years, largely unskilled, with decent levels of education. Although there is a high prevalence of irregular female migrants many of them transiting India en route to the Gulf Cooperation Council Countries (GCC), research indicates almost negligible numbers being smuggled to the US and Europe.

No official data was available from South Africa on smuggled Nepalese migrants or trafficked victims, whether for labour or sexual exploitation. However, there are cases reported to the Nepal police by returned migrants from South Africa, suggesting gaps in the data collection in both countries. Trafficking of young women, sometimes through false promises of migrating to the US or Europe is done, with the aim of trafficking them to the dance bars of Kenya. ‘Consent’ of the women for prostitution within the dance bars in Kenya was consistently mentioned by the Nepal police, thereby preventing them from filing trafficking cases against the accused in Nepal and indicating lackof understanding of this complex crime. This points towards an uneven knowledge and understanding of the concept of ‘consent’ – of the psychosocial impact on the victims, and other related issues with

7. Number of Nepali youths leaving for foreign job destinations on the rise (2017) The Himalayan Times. Retrieved from: https://thehimalayantimes. com/kathmandu/number-of-nepali-youths-leaving-for-foreign-job-destinations-on-the-rise/ Accessed: 20 September 2018; Lokshin, Benjamin, Theunissen, Tirza (2016) New App Provides Nepali Migrant Workers with Safe Migration Information. InAsia, The Asia Foundation. Retrieved from: https://asiafoundation.org/2016/05/25/new-app-provides-nepali-migrant-workers-safe-migration-information/. Accessed: 20 September 2018; Paudel, Nawaraj (2012) Migration Trend and Remittance Inflow – The Experience of Nepal. Retrieved from: https://www.academia.edu/5332576/MIGRATION_ TREND_AND_REMITTANCE_INFLOW_THE_EXPERIENCE_OF_NEPAL Accessed: 20 September 2018; Harris, Gardiner (2014) In Nepal, a Better Life With a Steep Price. The New York Times. Retrieved from: https://www.nytimes.com/2014/08/15/world/asia/in-nepal-a-better-life-with-a-steep- price.html Accessed: 20 September 2018 8. Migrant Smuggling in Asia and the Pacific - Current Trends and Related Challenges. Volume II. UNODC Regional Office for Southeast Asia and the Pacific, Bangkok. p. 50.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 7 respect to the victim’s psychology, especially in sex-trafficking cases.

Expanding networks of smugglers have emerged to meet the demand of migrants seeking assistance to travel. In South Asia however, migrant smuggling remains an under-researched and under-reported crime, and there is a lack of official data on smuggling and smugglers. What emerges strongly however, is that South Asians, especially Nepalese, Bangladeshis and Indians, normally follow the same routes and use similar smuggling networks. India emerges as a key transit point for migrants from Nepal and Bangladesh, and the use of each other’s is a common modus operandi.

Smugglers within the South Asia region form a multi-scaled and well-networked structure starting right from the place of origin of migrants through to the transit to the destination countries. All the case studies of smuggled Nepalese migrants mentioned in this report have shown the active involvement and network of Nepalese smugglers - right from the recruitment phase to the transit and destination countries. Every stage of movement of the migrant usually has the involvement of a Nepalese smuggler. Similarly, in the case of Bangladeshi and Indian migrants, desk reviews and information received from field visits suggested the involvement of smugglers from same nationalities.

The routes for smuggling of migrants to the US and Europe are circuitous and varied. The most common route, according to information available with the Nepal Police, for the US is, Nepal – India – Abu Dhabi or Dubai or Qatar - Bolivia or Ecuador or Peru - Brazil – Colombia - Panama - Costa Rica – Nicaragua - Honduras or El Salvador - Guatemala - and onwards to the US. There are multiple alternative routes as well. For good reason, it turns out, smuggling networks have purposefully routed their clients through the same six transit or staging countries in Latin America. Several distinct enabling geopolitical factors are: passive positions indifferent to trans-migration and US security concerns, weak government institutions and budgets that preclude direct action, formal policies that are exploited by the smugglers, and the corruptibility of some border and airport officials. The most common route to Western Europe occurs via Central Asia and the Russian Federation, the Islamic Republic of Iran, Turkey and Greece through the Western Balkans and occasionally via West Africa.

The Report brings out abuse, violence and exploitation faced by smuggled migrants during their journey, blurring the lines between formal definitions of trafficking and smuggling. States also have responsibilities towards migrants under the international legal regime and under their own human rights and other obligations. However, sometimes, frontline border and immigration officials participate or are complicit in the various activities at different stages of the smuggling processes. What is more, thousands of migrants are held each year in detention for considerable periods of time while officials attempt to determine if a person is smuggled, trafficked, or an asylum seeker. These statuses are not mutually exclusive. Another valid reason is that countries where the smuggled migrants are detected don’t have the means (and/or the cooperation of the origin country) to return the smuggled migrants- hence leaving them in detention for extensive periods of time9.

The estimated fees paid by Nepalese migrants to enter the US is between USD 25,000 minimum - USD 50,000 maximum, and the fee for being smuggled to Western Europe is considered to range between USD 15,000 and 30,000. In order to pay the smuggling fees, migrants are often supported by their families and communities, which gather their possessions to finance their journey (with the hope to later benefit from their remittance). Therefore, migrants are not sometimes perceived in Nepal by the law enforcement, as ‘poor and vulnerable’ as trafficked victims are.

The legal framework and responses by various state authorities suggests scope for improvement. Not all the countries under study have ratified the relevant international instruments, especially the 2 supplementing United Nations Protocols – Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air. There is also lack of specific legislation and national action plans and strategy to

9. Davidson Julia O’Connell (2012) Absolving the State: The trafficking-slavery metaphor. Global Dialogue 14:1. Retrieved from: http://www.aacademia.edu/1831397/Absolving_the_State_the_Trafficking-Slavery_Metaphor. Accessed: 26 October 2018

8 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL deal with the smuggling of migrants.

Although there are no simple solutions, the available data and research suggests several responses that could help reduce migrant smuggling and protect smuggled migrants (and where relevant, trafficked persons): - • Ratify the UN Protocols on Trafficking in Persons and Smuggling of Migrants. • Develop and/or strengthen specific national law on migrant smuggling or incorporate provisions within existing laws, including components from the UN Protocol on Smuggling of Migrants, with special reference to defining smuggling of migrants, criminalizing smuggling of migrants and its related offences and aggravating circumstances, safety and protection of migrants, refrain from criminalizing the migrant who has been smuggled for the fact of having been smuggled/ refrain from charging a migrant as an to his or her own smuggling, and ensuring assistance in transit and destination countries. • Implement and utilize the provisions of the Convention against Transnational Organized Crime of 2000, to deal with the organized criminal networks of smuggling of migrants. • Develop national plans of action or national strategies on countering the smuggling of migrants and strengthen enforcement of the existing national plans on trafficking in persons. • Strengthen regional cooperation mechanisms to tackle migrant smuggling and smugglers operating across borders, through effective implementation of existing SAARC mechanisms, and establishing joint task forces on countering the smuggling of migrants. • Strengthen international bilateral cooperation between countries of origin, transit, and destination for better information sharing on smuggling of migrants and for protection of rights of migrants within foreign territories. • Make the protection of smuggled migrants and trafficked victims a priority concern for diplomatic missions in transit and destination countries and strengthen access services and consular assistance, ensuring that diplomatic missions are adequately staffed and trained to deal with all issues faced by smuggled migrants and trafficked victims. • Enhance the body of evidence-based knowledge to better inform policy-making, generate and share information on the modus operandi, routes, and economics of migrant smuggling networks. • Build law enforcement capacity to investigate and prosecute smuggling networks, and seize and confiscate their assets. • Develop holistic approaches to create public awareness of migrant smuggling and its consequences at smuggling hotspots to empower people and communities to make wise and informed decisions.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 9 10 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL INTRODUCTION

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 11 1. INTRODUCTION

1.1 Background

Asia - home to 4.4 billion people - was the origin of over 40 percent of the world’s international migrants in 201510 . The number rose to 41 percent in 2017, totaling 105.7 million11. In Gulf Cooperation Council (GCC) countries, migrants make up high proportions of the total national populations. In 2015, migrants accounted for 88 percent of the population in United Arab Emirates, around 74 percent in Kuwait, 76 percent in Qatar, and 51 percent in Bahrain. Many of these migrants came from Africa, South Asia (India, Pakistan, Bangladesh and Nepal), and South-East Asia (Indonesia and the Philippines)12 .

Figure 1: Snapshot of international migrants 3.3% 3.2% 2.9% 2.9% 2.8% 2.8% 244 Million 222 191 Million 173 Million 161 Million 153 Million Million

1990 1995 2000 2005 2010 2015

Source: World Migration Report, 201813

Male and female international migrants are almost equally divided. The maximum migration takes place between the ages of 25-40 for both sexes.

10. International Organization for Migration (2018) World Migration Report. ILO, Geneva. p. 54 11. Department of Social and Economic Affairs (2017) International Migration Report. United Nations, New York. p. 9-10. Retrieved from: https://www. un.org/en/development/desa/population/migration/publications/migrationreport/docs/MigrationReport2017_Highlights.pdf Accessed on: 25 March 2019 12. IOM (2018) p. 56 13. IOM (2018) p. 17

12 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Figure 2: Snapshot of male and female international migrants

52% of international migrants are male, 48% are female

2.7 70 - 74 3.6 3.4 65 - 69 4.1 4.5 60 - 64 5.2 5.7 55 - 59 6.2 7 50 - 54 7.1 8.3 45 - 49 7.9 9.7 40 - 44 8.8 10.8 35 - 39 9.5 11.2 30 - 34 9.9 10.2 25 - 29 9.2 7 20 - 24 6.6 4.7 15 - 19 4.6 3.9 10 - 14 3.9 3.5 5 - 9 3.6 2.9 0 - 4 3

Source: World Migration Report, 201814

The United States of America (US) has been the main country of destination for international migrants since 1970. emerges as the second top country of destination since 2005.

Figure 3: Top 20 desired destination countries among adults planning to migrate (percent)

United States 20.9 United KIngdom 6.1 5.8 Canada 5.7 5.5 Germany 4.9 South Africa 3.5 3 United Arab Emirates 2.9 Spain 2.8 Italy 2.6 Angola 1.4 Egypt 1.4 Russian Federation 1.3 Turkey 1.2 Japan 1.1 Netherlands, the 0.9 Switzerland 0.9 Sweden 0.8 0.7 Brazil 0.7

0 5 10 15 20 25

Proportion (%) Source: World Migration Report 2018, InfoSheet No. 715

While most international migration occurs legally, some of the greatest insecurities for migrants, and much of the public concern about immigration are associated with irregular migration.

14. IOM (2018) p. 17 15. Retrieved from: https://www.iom.int/sites/default/files/wmr/document/WMRpercent20INFOSHEETpercent20No.percent207.pdf. Accessed: 18 September 2018.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 13 Over the last several decades, globalization and a growing concern over security issues, including and , have shaped migration policies and the priorities of states. As migration rose to the top of many government agendas, a rapid tightening and regularization of borders ensued in an attempt to keep undesirable, high-risk migrants out of potential destination countries. Concomitantly, transnational , such as trafficking in persons and the smuggling of migrants, have been increasingly defined as border security problems16 . Migrant smugglers make about USD 35 billion a year worldwide, as per International Organization of Migration17 estimates for 2017.

The question of borders, migration control, trafficking, organized crime, and human rights raise contested and controversial questions. How do we address the problematic questions of how borders in the context of anti-trafficking practices intersect with upholding human rights for migrants or smuggled migrants or trafficked victims? How do we engage with the question of how border controls structure migration and their implications for human rights? As such, the central question pertains to policy, i.e. what are the appropriate policy options?

1.2 Purpose of the report

This United Nations Office on Drugs and Crime (UNODC) report titled - Multi Country Studyon Smuggling of Migrants and Trafficking in Persons from Nepal is primarily intended to expand knowledge on the smuggling of migrants from Nepal to the Americas, Europe via South America and South Africa. The needs and gaps assessment conducted under the GLO.ACT18 project had identified Nepal as a source country and Brazil and Colombia as transit countries for smuggled migrants.

During desk review of literature, it emerged that several countries in Europe (especially Portugal) are also popular destinations or transit routes for Nepalese migrants. This component was therefore added to the report.

Initial interactions with Nepal Police and news reports suggested the smuggling of Nepalese male migrants to South Africa for work and trafficking of female victims to South Africa and Kenya. These two components were studied and were further added to this report.

The primary objectives of this study are to research and increase understanding about the realities and challenges associated with the smuggling of migrants from Nepal, inform migrant-smuggling legal framework and policies and other measures at the national level, and to foster international cooperation. In reflecting the body of documentation on the smuggling of migrants from Nepal, the report also draws attention to the knowledge gaps in understanding of the situation, the legislative and policy framework, law enforcement responses and protection of the returnee migrants.

It is to be noted that this report is not about the politics of migration, regular or irregular migration and about immigration or border controls. It is simply a study of the migration of Nepalese men and women usually for employment and for a perceived better life – often resulting in irregular migration or migrant smuggling. This report is also not about the challenges and problems encountered by regular migrants whom unscrupulous agents cheat, or who are charged a very high recruitment fees for jobs abroad, or whose job description in the destination country does not match what they were promised at the time of recruitment. This report does not comprehensively deal with trafficking in

16. Miller Rebecca, Baumeister Sebastian (2013) Managing Migration: Is border control fundamental to anti-trafficking and anti-smuggling interventions? Anti-Trafficking Review 2:2013, pp.15 - 32 17. Bugge Axel (2017) People smugglers make $35 billion a year on migrant crisis -IOM head. Reuters. Retrieved from: https://uk.reuters.com/article/ uk-portugal-migration/people-smugglers-make-35-billion-a-year-on-migrant-crisis-iom-head-idUKKBN18R26J. Accessed: 29 October 2018 18. The Global Action against Trafficking in Persons and Smuggling of Migrants (GLO.ACT) is a four-year (2015-2019) joint initiative by the European Union (EU) and the United Nations Office on Drugs and Crime (UNODC) being implemented in partnership with the International Organization for Migration (IOM) and the United Nations Children’s Fund (UNICEF). GLO.ACT aims to provide assistance to governmental authorities and civil society organizations across 13 strategically selected countries: Belarus, Brazil, Colombia, Egypt, Kyrgyzstan, Lao PDR, Mali, Morocco, Nepal, Niger, Pakistan, South Africa and Ukraine. It will do this by supporting the development of more effective responses to trafficking and smuggling, including providing assistance to victims of trafficking and vulnerable migrants through the strengthening of identification, referral, and direct support mechanisms.

14 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL persons within or out of Nepal, with the exception of trafficking to SouthAfrica and Kenya.

This report is therefore, singularly focused on –

• Irregular migration/ smuggling of migrants of Nepalese men and women in their quest to reach – o United States of America using Brazil and Colombia as transit countries, or o Europe, via South Africa and, primarily, to Portugal - o with the aid of smugglers; and • Trafficking of Nepalese men and women to - o South Africa and East Africa, mainly Kenya.

This report studies migration by Nepalese men and women who may initially be only irregular migrants, or may have valid entry in countries, but for instance, overstayed after their visa expired and became irregular or may be smuggled from thereon. Both are different terms as is highlighted in the key definitions above and need to be understood in their proper perspective.

Although this report is focused on studying smuggling of migrants from Nepal, it also mentions smuggled migrants from Bangladesh, and India (and sometimes Pakistan, and Sri Lanka), because almost all the available research, literature, and field visit interviews point towards South Asians (namely Nepalese, Bangladeshis and Indians) normally using same routes and similar smuggling networks.

1.3 Overview of research and information collection process

The desk review and research for this report, field visits, and the report writing took place between June 2018 and January 2019. Field visits were preceded by a systematic collection and analysis of research literature, including academic publications and reports published by governments and international organizations. Rigorous research was conducted on the Internet to find news reports and information emanating from Nepal on smuggled migrants. Along with research and collection of information on smuggling of migrants from Nepal, resource material was collected with references to migrant smuggling in the South Asian region (Bangladesh and India).

Questionnaires on the various aspects of information collection were sent to relevant authorities before conducting field visits for personal interviews and collecting information first hand. Interviews were conducted and meetings were held with - Law enforcement officers, prosecutors, immigration officials, representatives from Ministry of Foreign Affairs, Ministry of Labour and Employment, Ministry of Justice, Ministry of Interiors, Embassy officials, non-governmental organizations, International Organization for Migration (IOM), field staff from UNODC, and 14 Nepalese migrants in Brazil.

Field visits were conducted as follows –

Field Visit to Colombia • Dates: 16-26 January 2018 • Places visited: Bogota, Medellín

Field Visit to Brazil • Dates: 19 – 29 August 2018 • Places visited: São Paulo and Brasilia Federal District

Field Visit to Nepal • Dates: 23 – 29 September 2018 • Places visited: Field Visit to South Africa • Dates: 28 Oct – 05 November 2018 • Places visited: Pretoria and Johannesburg.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 15 1.4 Limitations of the report

Limited information and lack of data – Research for this report revealed that while there has been promising progress in terms of data and research on international migrant smuggling and irregular migration in general in South Asia, there remains a substantial gap and limited information on smuggling activities in Nepal (Bangladesh and India). At present no systematic data on irregular migration is maintained either at the state, provincial or the national level in any country. The majority of the information is available through new articles, reports from international organizations and NGOs.

As informed by various stakeholders during field mission to Nepal, collation of information on the actual number of irregular/ smuggled migrants is a constant challenge. Irregular/ smuggled migrants are for obvious reasons not on any database in their countries of origin; besides they go to New Delhi first and then fly out from there. Since India and Nepal have an open border policy, they are off the radar of most agencies. Taken together, a lack of conceptual clarity, confusing issues of smuggling of migrants and human trafficking, and shortage of reliable data mean that it is virtually impossible to provide accurate estimates of the scale of human smuggling in/ from Nepal.

There is also limited research on irregular migration and virtually none on smuggling of migrants in Nepal and in South Asia. This suggests that more research is needed to unpack the process of migrant smuggling throughout the migration journey and actors involved. Similarly, further in-depth studies into migrant smugglers are required to explore smugglers throughout the migration journey, their roles, sharing of fees and risks they face. Equally important is transnational links between smuggled migrants and their family members residing back home19.

The methodology applied in this report is largely qualitative. A serious limitation to using quantitative research was the difficulty in obtaining information on ‘unsuccessful’ smuggled migrants who had returned back to Nepal. Information could not be availed from the police in the few cases since some cases are currently under investigation. Another limitation was the unfeasibility of interviewing smugglers, due to non-availability of details on smugglers from the police on the cases under investigation, which could have provided more insight into the ‘business model’ in Nepal and their networks.

The use of a qualitative research design brings greater clarity and nuance to this sparsely studied field. Qualitative approaches are appropriate for exploring new phenomena, such as the smuggling of migrants from Nepal, and good at bringing in-depth knowledge to the fore.

14 Nepalese migrants were interviewed in São Paulo during the field visit to Brazil. The office of the Defensor Público Federal/ Public Defenders Office, located in São Paulo, invited the migrants. This office is responsible for assisting migrants in Brazil. All the Nepalese migrants on the database of the Defensor Público Federal were personally invited, and fliers in Nepali language were placed in markets, where they worked. 12 men and 2 women came up for discussions/ interview. A semi- structured questionnaire was used to conduct the interviews. Since the research team had moved to Brasilia FD, and migrants were available to be interviewed only on Sunday, the Program Coordinator, UNODC, ROSA interviewed them through Skype.

While the Nepalese migrants readily provided information on their native village and districts, for how long they were in Brazil, the nature of their work, and other details, they mentioned that it was mainly a local person who “assisted” them along with other “consultancies20” working in the country.

19. Jayasuriya Dinuk, Sunam Ramesh (2016) South Asia. In: Migrant Smuggling Data and Research: A Global Review of the Emerging Evidence Base (M. McAuliffe and F. Laczko, eds.). IOM, Geneva. pp. 202. Retrieved from https://publications.iom.int/system/files/smuggling_report.pdf. Accessed: 15 October 2018 20. Travel agencies and educational counseling centres are sometimes, broadly called as “consultancies” in Nepal.

16 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL SITUATION ANALYSIS OF THE SMUGGLING OF OF THE SMUGGLING OF ANALYSIS SITUATION MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL FROM IN PERSONS MIGRANTS AND TRAFFICKING

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 17 2. SITUATION ANALYSIS OF SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL

2.1 Situation analysis of smuggling of migrants from Nepal to the Americas

2.1.1 Overview

Nepal is a land of ethnic diversity. The total population of Nepal, as per the 2011 Census, was 26,494,50421 , and in January 2019 it stands at 29,425,91022. Migration is not new to Nepal, and the net migration rate is -2.2 migrant(s)/ 1,000 population23 .

Synopsis of history of migration from Nepal - The history of formal entrance of Nepalese citizens in foreign employment begins in 1814-1816 after the Nepal - British India war24. A total of 4,650 Nepalese were recruited to the British armed forces as a British-Gurkha25 regiment. Similarly, the migration of Nepalese people for other employment purposes, such as working in the tea estates of Darjeeling and Assam in India, began in the second half of the 19th century. Economic migration to the Middle East from South Asia and other parts of the world was spurred-on by the oil boom in the early 1970s. International labour migration, mostly to Gulf States26, Malaysia and other South East Asian countries is a new phenomenon of migration in the Nepalese context with about a 30 year long history. Unexpectedly, foreign labour migration has developed in such away that it has shifted the agricultural-based economy towards a remittance-based economy.

Although, in absolute numbers, international labour migration from Nepal does not attract global attention, it is ranked third globally for its remittance share of GDP27.

Figure 4: Remittances received in USD

NEPAL 7 iion U

TREND FOR NEPAL 8 bill

6 bill

4 bill

2 bill

0 1996 2000 2004 2008 2012 2017

Source: Migration Data Portal28

21. Retrieved from: https://en.wikipedia.org/wiki/2011_Nepal_census. Accessed: 19 October 2018 22. As on 02 January 2019, as per the Central Bureau of Statistics. Retrieved from: http://cbs.gov.np. Accessed: 02 January 2019 23. The net migration rate indicates the contribution of migration to the overall level of population change. The net migration rate does not distinguish between economic migrants, refugees and other types of migrants nor does it distinguish between lawful migrants and undocumented migrants. The World Factbook, Central Intelligence Agency. Retrieved from: https://www.cia.gov/library/publications/the-world-factbook/docs/notesanddefs. html#347. Accessed: 12 December 2018 24. Bhattarai Prakash (2006) Migration of Nepalese Youth for Foreign Employment: Problems and Prospects. Centre for the Study of Labour and Mobility. Retrieved from: https://www.ceslam.org/index.php?pageName=newsDetail&nid=139 Accessed: 19 September 2018 25. A member of any of several peoples of Nepal noted for their military prowess. 26. The Arab states of the Persian Gulf are the seven Arab states which border the Persian Gulf, namely Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE). Retrieved from: https://en.wikipedia.org/wiki/Arab_states_of_the_Persian_Gulf. Accessed: 19 September 2018 27. World Bank (2015) Migration and remittances: Recent Development and Outlooks. Special Topic: Financing for Development. Migration and Development Brief 24. Washington, DC: World Bank. Retrieved from: http://pubdocs.worldbank.org/en/773611444756855376/ MigrationandDevelopmentBrief24.pdf. Accessed: 19 September 2018 28. Retrieved from: https://migrationdataportal.org/?i=remit_re&t=2017&cm49=524. Accessed: 25 September 2018; and Migration and Development Brief 29. Retrieved from: https://www.knomad.org/publication/migration-and-development-brief-29. Accessed: 25 September 2018

18 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL As per International Labour Organization (ILO)29 data, in 2016 - India, , Philippines, Mexico and Pakistan were (in descending order) the top five remittance recipient countries. However, when remittances are viewed as a percentage of GDP, the top five countries are Kyrgyzstan (at 35.4 percent), followed by Nepal (29.7 percent), Liberia (29.6 percent), Haiti (27.8 percent) and Tonga (27.8 percent).

Migration statistics for Nepal – Statistics from the Migration Data Portal of the International Organization for Migration (IOM)30 reveals data on migration globally and for Nepal.

Table 1: Key migration statistics for Nepal

Key Migration Statistics Global Nepal The total number of international migrants 257.7 million 502.7 thousand residing in the country or region (that is, people living in a country other than their country of birth)

International migrant stock as a percentage of 3.4 percent 1.7 percent the total population

Proportion of female migrants of the international 48.4 percent 69.4 percent immigrant stock

Personal remittances received as percent of --- 28.3 percent GDP

Source: Migration Data Portal 31

With an average of 1,500 Nepalese migrant workers leaving Nepal every day32 for foreign employment, international labour migration forms an important part of the lives of Nepalese citizens. The Labour Report of 201433 showed large-scale labour migration from Nepal, although the movement was concentrated in the Gulf Cooperation Council (GCC) countries and Malaysia. While labour migrants originate from all parts of the country, the majority of them were from the South-Eastern plains of Nepal. Similarly, labour migration was primarily a male phenomenon because more than 95 percent of all those obtaining labour permits were male. Updating data for the past two fiscal years34 , 2015/16 and 2016/17, the Department of Foreign Employment (DOFE) database showed that over 3.5 million labour permits have been issued in the nine years since the enactment of the Foreign Employment Act, 2007.

29. IOM (2018) p. 31 30. Launched in December 2017 and managed and developed by IOM’s Global Migration Data Analysis Centre (GMDAC) at: http://gmdac.iom.int 31. United Nations, Department of Economic and Social Affairs. Population Division (2017). Trends in International Migrant Stock: The 2017 Revision. Migration Data Portal Retrieved from: https://migrationdataportal.org/data?i=stock_abs_&t=2017. AND https://migrationdataportal.org/?i=stock_ abs_&t=2017&cm49=524. Accessed: 24 October 2018 32. Number of Nepali youths leaving for foreign job destinations on the rise (2017) The Himalayan Times. Retrieved from: https://thehimalayantimes. com/kathmandu/number-of-nepali-youths-leaving-for-foreign-job-destinations-on-the-rise/ Accessed: 20 September 2018; Lokshin, Benjamin, Theunissen, Tirza (2016) New App Provides Nepali Migrant Workers with Safe Migration Information. InAsia, The Asia Foundation. Retrieved from: https://asiafoundation.org/2016/05/25/new-app-provides-nepali-migrant-workers-safe-migration-information/. Accessed: 20 September 2018; Paudel, Nawaraj (2012) Migration Trend and Remittance Inflow – The Experience of Nepal. Retrieved from: https://www.academia.edu/5332576/MIGRATION_ TREND_AND_REMITTANCE_INFLOW_THE_EXPERIENCE_OF_NEPAL Accessed: 20 September 2018; Harris, Gardiner (2014) In Nepal, a Better Life With a Steep Price. The New York Times. Retrieved from: https://www.nytimes.com/2014/08/15/world/asia/in-nepal-a-better-life-with-a-steep- price.html Accessed: 20 September 2018 33. Department of Foreign Employment (DOFE) (2014) Labour Migration for Employment - A Status Report for Nepal: 2013/2014. Government of Nepal, Ministry of Labour and Employment, Kathmandu 34. The data from this report mostly refer to the Nepali fiscal year (FY). According to the Gregorian calendar, the Nepali fiscal year runs from 17 July to 16 July.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 19 Estimates suggested that in 2013, approximately 3.2 million migrants from Nepal were working in an irregular status in countries other than India35 . Approximately 90 percent of this population was women36 . The difference in these 2 categories of migrants is – those obtaining the valid government labour permits to migrate – 95 percent are men. The other category is of irregular migrants/ migrants with irregular status – 90 percent of which are women.

Foreign employment continues to be the most significant motivation for international migration from Nepal37 . In 2 fiscal years 2015/16 and 2016/17, the DOFE issued 786,564 permits for foreign employment to over one hundred destination countries. DOFE data38 suggests that a majority of the migrant Nepali workers are engaged in 3D works (Difficult, Dirty, Dangerous).

Labour migration to India is not included in the government reports because there is no requirement for official documents to cross the border, and thus there are no records of migration flows.

Moreover, the number of labour permits issued do not capture labour migration for foreign employment through irregular channels either via India or directly to other countries with the support of middlemen/ smugglers, including those who travelled with a different type of visa to a destination country and stayed there for work39.

This is especially true for women, who make up 12.5 percent (2011) of the official migrant labour force migrating for work outside Nepal, but who also leave in large numbers outside official channels. With laws and policies designed to protect women from abuse restricting who can go and where, many are forced to hop from one country to another before reaching their final working destinations, unregistered and without knowing their whereabouts40.

In Nepal, the national laws governing foreign employment (earlier Foreign Employment Act, 1985 replaced by the new Act in 2007) place restrictions on women under the age of thirty for migrating to Gulf countries as domestic workers; leading to female migrants seeking irregular channels for migration to Gulf countries and other destinations. It is likely that many of these irregular migrants utilized the services of migrant smugglers to reach destinations in Gulf countries and beyond41.

It thus, helps to conclude that the number of Nepalese migrants in foreign countries, who may have utilized irregular channels, is more than the official data published by the Government of Nepal42.

Preferred destination countries for irregular migrant workers - Irregular migrants from Nepal mostly go to Bahrain, Japan, India Kuwait, Lebanon, Macau (China), Malaysia, Oman, Qatar, the Republic of Korea, Saudi Arabia and the United Arab Emirates43. Although, Nepalese migrants are known to be living in the US and Europe having entered irregularly, there are no figures available for irregularly smuggled migrant workers in the US or Europe.

Migration in the larger context of the South Asia region – The South Asian region comprising of Afghanistan, Bangladesh, , India, Maldives, Nepal, Pakistan and Sri Lanka – is a hub of irregular and regular migration flows.

35. UNODC (2018) Migrant Smuggling in Asia and the Pacific - Current Trends and Related Challenges. Volume II. UNODC Regional Office for Southeast Asia and the Pacific, Bangkok. p. 50 36. Ibid. 37. Department of Foreign Employment (DOFE) (2017) Labour Migration for Employment - A Status Report for Nepal: 2015/2016 – 2016/2017. Government of Nepal, Ministry of Labour and Employment, Kathmandu 38. DOFE (2014) 39. DOFE (2017) p. 3 40. Pyakurel Uddhab Pd. (2018) Restrictive Labour Migration Policy on Nepalese Women and Consequences. Sociology and Anthropology 6(8): 650-656. Retrieved from: http://www.hrpub.org/download/20180730/SA3-19611136.pdf. Accessed: 12 December 2018 41. UNODC (2018) p. 50 42. Kunwar Laxman Singh (2015) Emigration of Nepalese People and Its Impact. Economic Journal of Development Issues, Combined Issue 19 & 20: 1-2. Retrieved from: https://www.nepjol.info/index.php/EJDI/article/view/17705/14372. Accessed: 12 October 2018 43. NODC (2015) p. 39

20 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Figure 5: Map of South Asia UZ BE Kashi 60° 65° K 75° 80° 85° 90° 95° IS TAJIKISTAN TURKMENISTAN T D A

N u

c h a nb Hotan SOUTH ASIA e 35° Gilgit 35° Herāt Kābul Chinese Jammu Line Indian Line AFGHANISTAN Peshawar In and du s ād CHINA Islāmāb i Kashmir ind walp Kandahar- Ra Gujranwala Zhob Lahore Amritsar 30° Simla Quetta 30° Multan Ludhiana Chandigarh N Lhasa Indian Line A j utle Yarlung T Bahawalpur S Delhi N Chinese Line I S (Brahmaputra) Xigazê phu P A K Bareilly im Sukkur New Delhi G G E Mount Everest s Y h u a Dibrugarh h 8848 m T Larkana d a n n a I m g P Itanagar a es g r u h A t Dadu n a Kathmandu pu Jaipur a r L BHUTAN a Lucknow a hm Turbad Bra Jodhpur al Gorakhpur Hyderabad mb Kanpur Dispur ha G 25° C Gwalior anges Shillong Kota P 25° Karachi V a Udaipur a tn (B r a Imphal a a n na BANGLADESH a si A Gandhinagar ra g Aizawl s) art G Ahmadabad Bhopal Jabalpur Kolkata ala ulf o f Kutch Indore Jamshedpur (Calcutta) Khulna Vadodara Raurkela a s Mandalay Rajkot Narmad Mahanadi Kharagpur ge n a t M e G a outh of th h Surat Nagpur Raipur b Cuttack Jaipur m 20° a Daman h 20° f K Silvassa f o Bhubaneswar Sittwe Gul INDIA Kalyan Go vari Mumbai Pune da (Bombay) Bh im Hyderabad a Vishakhapatnam A r a b i a Kolhapur Vijayawada Kakinada n S e a K g a l rishna B a y o f B e n Belgaum Guntur Machilipatnam 15° Panaji

Bellary 15°

A n

Bangalore Chennai d

Mangalore (Madras) a Vellore Port Blair

m Mysore Pondicherry Andaman L a L Kozhikode Salem Islands a a (INDIA) n k (Calicut) s

10° ( K c I h 10° N S a a Madurai D v c d I a e A w r a Cochin Jaffna a ) e a t t d Tuticorin e i

p i r a Trincomalee v Trivandrum n Nicobar an e f M Negombo SRI LANKA Islands lf o Gu (INDIA) Kandy Sri Jayewardenepura-Kotte S e Galle a Matara 5° MALDIVES 5° Maldive The boundaries and names shown and the designations used Male on this map do not imply official endorsement or acceptance Islands by the United Nations. I N Dotted line represents approximately the Line of Control 0 200 400 600 km D I A N O C E A N in Jammu and Kashmir agreed upon by India and Pakistan. The final status of Jammu and Kashmir has not yet been 0 200 400 mi agreed upon by the parties. 65° 70° 75° 80° 85° 90° 95°

Map No. 4140 Rev. 4 UNITED NATIONS Department of Field Support December 2011 Cartographic Section

Source: UN Geospatial Information Section44

Irregular migration both within and from the region is common in South Asia, and is often aided by loose smuggling networks. While the exact number of people undertaking irregular migration within the region is not known, partly because of its relatively porous borders, estimates indicate large irregular migrant populations within the region. US, Europe and Australia, are all popular destinations for irregular and smuggled migrants from the region45 .

Irregular migrants from Bangladesh, Pakistan, Nepal and Sri Lanka are smuggled to Middle Eastern countries, such as Qatar, Bahrain, Oman, Libya, Kuwait, Saudi Arabia and the United Arab Emirates and also to Malaysia, and Indonesia for domestic labour46 . From Nepal (Bangladesh and India) smugglers also facilitate migration to US, Europe, and Australia. As per the 2018 Global Study for Smuggling of Migrants, for Asians, the most frequently reported origin countries appear to be Nepal, Bangladesh and India47 .

In early January 2019, between 100 to 200 migrants, including pregnant women and children migrants were attempting to reach New Zealand by sea from India, a 7,000 mile boat journey through some of the roughest waters in the world. The fishing boat left Munambam harbour in Kerala, India’s southernmost State. The smuggled migrants were refugees from Sri Lanka living in Delhi, India48 .

44. Retrieved from: http://www.un.org/Depts/Cartographic/map/profile/SouthAsia.pdf. Accessed: 24 December 2018 45. The Asia Foundation (2013) Labour migration trends and patterns: Bangladesh, India, and Nepal. TAF, Kathmandu. Retrieved from: https:// asiafoundation.org/resources/pdfs/LabourMigrationTrendsandPatternsBangladeshIndiaandNepal2013.pdf. Accessed: 25 August 2018 Shelley Louise (2014). Human Smuggling and Trafficking into Europe: A Comparative Perspective. Transatlantic Council on Migration, Migration Policy Institute, Washington, D.C. Retrieved from: https://www.migrationpolicy.org/research/human-smuggling-and-trafficking-europe-comparative- perspective. Accessed: 25 August 2018 46. Jayasuriya, Sunam (2016) p. 192 47. UNODC (2018 - II) Global Study on Smuggling of Migrants. United Nations Office on Drugs and Crime New York. p. 97 48. Pal Alasdair (2019) Lack of jobs in India drove migrants on to boat for New Zealand, say relatives. Reuters. Retrieved from: https://www.reuters.com/ article/us-india-migration-newzealand-insight/lack-of-jobs-in-india-drove-migrants-on-to-boat-for-new-zealand-say-relatives-idUSKCN1PJ0TD. Accessed: 25 January 2019

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 21 Figure 6: Popular destination countries in East Asia, Southwest Asia, South Asia, Southeast Asia, North America and Oceania for the smuggling of migrants from South Asia

Source: UNODC (2018)49

India as a transit point - Neighbouring India is the most immediate and most accessible transit point for irregular migrants from Nepal. The Treaty of Peace and Friendship between the Government of India and the Government of Nepal and India50 permits free cross-border movements without any visa or passport requirement for citizens of both countries. Much of this cross-border movement is for labour migration and most of these movements are largely informal and uncontrolled. Many Nepalese women who seek employment/ or are trafficked in the Gulf States and West Asia, travel by land to India where they board flights to these destinations. Dhaka, Bangladesh, has also been identified as a transit point for irregular Nepalese labour migration to other destinations in the region51.

The current context - In the past couple of years, media from Latin America has been reporting the detection of smuggled Nepalese migrants on their way to the US and Canada, using several countries in transit. Nepali media also routinely reports stories about smuggled migrants who managed to ‘successfully’ reach US and of those who had to return or were deported back. Nepali migrants have also been trying to reach different countries in Europe, chief among them being Portugal. Some were recently found joining the routes used by Syrian refugees to Europe52. South Africa has recently emerged has both a transit and destination country for both regular and irregular migration from Asia, particularly Nepal, India, Pakistan, and Bangladesh.

2.1.2 Push and pull factors in Nepal related to the smuggling of migrants, irregular migration and trafficking in persons

The push and pull dynamics that fuel irregular migration or smuggling of migrants from Nepal are important to understand to frame effective policies and strategies for protection of migrants vis-à-vis recognizing their aspirations for a better life in a ‘foreign country. Similar factors would be applicable for trafficking in persons from Nepal.

How potential and actual migrants contemplate migration journeys at various stages is of keen interest to migration researchers as well as policymakers. Information is central to migrants’ contemplations

49.UNODC (2018) p. 58. 50.Text available at: https://www.cia.gov/library/readingroom/docs/CIA-RDP81-01036R000100140065-5.pdf. Accessed: 25 September 2018 51. The Asia Foundation (2013) p. 40 52. Migrant crisis: Macedonia shuts Balkans route (2016). BBC. Retrieved from: https://www.bbc.com/news/world-europe-35763101. Accessed: 24 September 2018

22 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL and perceptions of migration, whether in considering their options, choosing a destination, or determining the safest and most financially feasible routes. Despite information campaigns, media reporting, and information from family, friends and other migrants, in some circumstances migrants continue to contemplate and undertake high-risk irregular migration journeys53.

It is obvious that the first choice of any migrant would be through regular migration and not through the smuggling route. Nepal being a labour sending source country clearly affords many opportunities for people to migrate regularly for employment, mainly to India, the Middle East and South East Asia. The rationale therefore, for irregular migration or agreeing to be smuggled to the US or Europe are due to the main push and pull factors at various points along the route, including social trends and trigger events across countries of origin (be it Nepal, Bangladesh or India) and how these may lead to new migratory aspirations in the context of Nepal are explained below.

2.1.2.1 Push factors from Nepal

1. Poverty and unemployment – Nepal’s Gross Domestic Product (GDP) was USD 24.47 billion in 2017. The main sector of the economy is agriculture, which employs over 70 percent of the population and accounts for 33 percent of GDP54 . As per the Asian Development Bank55 statistics of 2010 for Nepal, 25.2 percent of the population lived below the poverty line. The proportion of employed population below $1.90 purchasing power parity a day in 2010 was 15 percent56 . This figure is now increased to 21.6 percent in 2015 as per UNDP estimates57.

Poverty in Nepal is mainly a rural phenomenon with approximately 75 percent of the population living in villages, with agriculture as their main source of subsistence58 . Of the total poor, over 90 percent live in rural areas. In urban areas, the poverty incidence is almost 23 percent. One of Nepal’s major is labour, and most rural households now depend on at least one member’s earnings from employment away from home and often from abroad.

The unemployment rate of the total population is 2.7 percent, and youth unemployment is 4.3 percent59 . Lack of employment within the country and a demand of workforce from other countries has led to Nepal becoming a source country for supplying labour.

Low income and lack of domestic jobs is cited as the primary reason for seeking foreign employment. When youth who stay in Nepal are employed, they are less likely to report being satisfied with their work and more likely to desire a new job60.

Poverty coupled with lack of employment, are the push factors in Nepal for young men and women to migrate even if it is to be done irregularly. These are also equally critical factors in people getting trafficked on the promises of employment and decent pay abroad. Although the poor may not really have the readily available finances to pay the smugglers for their migration, people are known to sell their land or take loans to finance their trips. Migrants’ stories of their journeys to the US highlight the desperate desire of Nepalese (or Bangladeshis) as reported in news articles, to break out of their poverty and the seeming hopelessness within their own countries.

53. IOM (2018) Infosheet No. 7. Retrieved from: https://www.iom.int/sites/default/files/wmr/document/WMRpercent20INFOSHEETpercent20No. percent207.pdf. Accessed: 12 November 2018 54. Retrieved from: https://tradingeconomics.com/nepal/gdp-growth-annual. Accessed: 29 October 2018 55. Retrieved from: https://www.adb.org/countries/nepal/poverty. Accessed: 29 October 2018 56. Ibid. 57. Retrieved from: http://www.np.undp.org/content/nepal/en/home/poverty-reduction.html. Accessed: 29 October 2018 58. Global South Development Magazine. Poverty in Nepal: Causes and Consequences. Retrieved from: https://www.gsdmagazine.org/poverty-in-nepal-causes-consequences/. Accessed: 12 November 2018 59. ILO (May 2018) Unemployment Rate - ILO Modeled estimates. Retrieved from: https://www.ilo.org/ilostat/faces/oracle/webcenter/portalapp/pagehierarchy/Page3.jspx?MBI_ID=2&_afrLoop=1789358417476235&_ afrWindowMode=0&_afrWindowId=189c6pxq77_1#!percent40percent40percent3F_afrWindowIdpercent3D189c6pxq77_1percent26_ afrLooppercent3D1789358417476235percent26MBI_IDpercent3D2percent26_afrWindowModepercent3D0percent26_adf.ctrl- statepercent3D189c6pxq77_57. Accessed: 12 December 2018 60. World Bank (February 2018) Nepal Systematic Country Diagnostic. p. 6 Retrieved from: http://documents.worldbank.org/curated/ en/361961519398424670/pdf/Nepal-SCD-Feb1-02202018.pdf. Accessed: 01 January 2019

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 23 2. Political instability - Migration from the rural areas to the towns and regular/ irregular migration increased in recent years because of the Maoist insurgency, which began in 1996 in Nepal. In a study61 of forced migration during civil conflict in Nepal from 1996 to 2006, it emerged that media reporting on violent clashes and deaths may have raised public awareness of threats that subsequently influenced individuals’ decisions to move.

3. Environmental factors – There is a substantial impact of natural disasters and environmental degradation on people’s migration and consequential impact on trafficking in persons. The 7.8 magnitude earthquake that hit central Nepal in April 2015 with hundreds of aftershocks, followed by a second earthquake in May 2015, was one of the worst natural disasters in the country’s history, causing about 9,000 deaths and over 22,000 injuries. Losses were estimated at USD 7 billion, equivalent to about a third of Nepal’s GDP. 8 million people across 31 of the country’s 75 districts were affected62. The earthquake had an impact on migration and the trafficking of women and children. Newspaper stories63 mentioned of Nepali migrants being smuggled to Europe in 2015 in the aftermath of the earthquake, and that Nepalese women were trafficked to Gulf countries and sold for USD 5,000 each to employers as maids. Almost half of the women had left from Kathmandu’s airport despite laws prohibiting their travel, while the other half had traveled through India, Bangladesh and Sri Lanka64 .

4. Social factors/ Aspirational migration – A 2013 study65 on regular and irregular migration from Nepal found that 90 percent of respondents listed economic factors as influencing the decision to migrate, which includes escaping poverty, unemployment, debt, gaining financial security, accessing health and education services, and obtaining a higher standard of living, economic independence, and well-being in general.

However, any analysis of push and pull factors for smuggling of migrants also requires a nuanced approach that explores some of the more underlying motivations. While many of the smuggled migrants from Nepal to the US may have reasons of escaping conflict or disaster, most are moving for economic reasons or for ‘aspirational migration.’ Their aspirations are often linked to the notion of comparative and relative wealth. Those who are migrating are not escaping vicious poverty, as they can afford (whether by selling their land or through loans, etc.) the high smuggling fees, nor are they utterly ignorant of the irregularity of their acts, or the risks and dangers (though they may not fully understand or appreciate the magnitude).

The following Case Study, provided by the Nepal Police, aptly explains such ‘aspirational migration’.

Case Study 1: Smuggling of Nepalese women to Haiti66

Three Nepalese women in the age group of 26-30 years were contacted by smugglers in Nepal and promised migration to the US. Their families owned land in in the plains of Nepal, where price of land near highways/ freeways was very high. The total cost incurred by the 3 women as fees to the smugglers for this journey was approximately USD 128,000. The women from Kathmandu accompanied the agent to New Delhi, India and their onward route was to – Bangkok, Thailand, Malaysia, and finally to , where they applied for student visa to Mexico, which was rejected. A new plan was made, wherein it was decided that a film shooting would be faked in Haiti, and from there they would try and reach the US by ship/ boat. The new route taken by the 3 women was – New

61. IOM (2018) p. 203 62. Maharjan Amina, Prakash Anjal, Goodrich Chanda (2016) Migration and the Gorkha Earthquake in Nepal - Effect on rescue and relief processes and lessons for the future. Retrieved from: https://www.researchgate.net/publication/310345648_Migration_and_the_Gorkha_Earthquake_in_Nepal_ Effect_on_rescue_and_relief_processes_and_lessons_for_the_future. Accessed: 20 November 2018 63. Miles Tom (2015) EU gets one million migrants in 2015, smugglers seen making $1 billion. Reuters. Retrieved from: https://www.reuters.com/article/ us-europe-migrants/eu-gets-one-million-migrants-in-2015-smugglers-seen-making-1-billion-idUSKBN0U50WI20151222. Accessed: 25 September 2018 64. Sharma Gopal (2017) Nepali immigration officials may be involved in trafficking women to Gulf. Reuters. Retrieved from: https://www.reuters.com/ article/us-nepal-trafficking-gulf-idUSKBN1722G4. Accessed: 12 December 2018 65. The Asia Foundation (2013) p. 8 66. The detailed version of the Case Study is at Annexure 1.

24 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Delhi, India - Russia, Moscow – Bogotá, Colombia – Dominican Republic67 – Haiti.

Figure 7: Haiti, the new port of choice to America

Source: The Daily Mail68

The women stayed in Haiti for 3 months, after which, they were put on a boat along with several other women and men from different nationalities, to sail from Port-au-Prince to Miami, Florida. This boat was at sea for 18 days without food and water, when the Bahamas Navy rescued the drifting boat. The Bahamas government contacted the Nepal Embassy in the US, and they in turn contacted their families, who then informed the local police in Nepal. After coming back, the women and their families consistently refused to file police complaints. They were not interested in prosecution, but in getting their money back. They again tried to reach the US by hiring the services of the same agent, who had duped them in the first place.

The police found more facts of an international angle, of a man called ‘A’, a Nepalese who lived in Canada. This person was known to have enticed women with film offers, duped people of their money, conducted sham marriages with Nepalese girls, lured them to Canada and divorced them after taking huge amounts of money.

Currently69 ‘S2’ a local smuggler from Nepal, and 4 other Nepalese are in jail awaiting trial.

A new global analysis of intentions to migrate also suggests that individuals preparing to move abroad are more likely to do so not out of ‘desperation’ but out of ‘aspiration’ for a better life, economic opportunities and development of skills. While the analysis does not include individuals who are forced to migrate, such as refugees and asylum seekers, it provides valuable insights on voluntary migrants70.

When irregular migrants from Nepal and Bangladesh were interviewed(by the journalist covering the story)71 during their transit from Panama to the US, they went as far as suggesting that it was in their ‘destiny to migrate’. This attitude, which appears as somewhat of a coping mechanism, helps

67. Dominican Republic is located in the island of Hispaniola, in the Greater Antilles archipelago of the Caribbean region. 68. Sharma Ankur (2014) Haiti is new port of choice for Indians trying to enter the US illegally. The Daily Mail. Retrieved from: https://www.dailymail. co.uk/indiahome/indianews/article-2610643/Haiti-emerges-new-illegal-port-entry-US-Indian-emigrants.html. Accessed: 10 December 2018 69. As on October 2018. 70. Migali Silvia, Scipioni, M (2018) A global analysis of intentions to migrate. Joint Research Centre, European Commission. Retrieved from: https:// ec.europa.eu/jrc/sites/jrcsh/files/technical_report_on_gallup_v7_finalpubsy.pdf. Accessed: 12 December 2018 71. Motlagh Jason (2016) A Terrifying Journey Through the World’s Most Dangerous Jungle. Outside Magazine. Retrieved from: https://www.outsideonline.com/2098801/skull-stake-darien-gap. Accessed: 27 August 2018 AND Schaefer Sara Munoz (2015) Global Migrants Brave Panama’s Vipers, Bats, Bandits to Reach U.S. The Wall Street Journal. Retrieved from: https://www. wsj.com/articles/why-u-s-bound-migrants-brave-panamas-brutal-jungle-1432914231. Accessed: 22 October 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 25 explain why learning about the very grave risks of the journey often does not deter migrants from using irregular routes.

The success stories of other migrants in reaching a particular destination are also significant factors influencing the decision of others to migrate72. Nepal police narrated73 a specific instance of a Chairman of a village council in (in , Zone of southern Nepal) who had sent his son to the US, and who received legal status after 3 years of reaching there. Now, when the son comes visiting, other villagers who can afford to pay between USD 17,000–35,000, request him to ‘take their son to the US’. The village chief’s son now ‘facilitates’ the migration of other villagers as their ‘agent’.

5. Remittances – Among the push factors, an increasing reliance on remittances as key components of household incomes has emerged as an important factor. While the positive benefits of improved household income and related social changes can be clear, some are feeling the impact of significant pressure to migrate and a sense that options to stay at home are no longer as viable as they once were. Migration decisions have increased in social significance and a ‘culture’ of migration has increasingly emerged74.

6. Gender dimensions - Migration-related decision-making processes can have strong gender dimensions especially in view of the large majority of Nepali women using irregular channels to migrate overseas75. The decision is usually driven by the ease of movement, low cost of migration, lack of information on legal or irregular migration, the influence of smugglers, and to avoid the lengthy and cumbersome procedures prevailing in Nepali laws and policies. Women are limited in their choice due to policies such as, imposing age-restriction for migration to the Gulf countries by the Government of Nepal76. Women, especially single women and victims of domestic violence who lack the support system, are also often driven to irregular migration77. As female migrant labour mostly target domestic work or caregiver services, the age restrictive bans on these sectors force them to take the irregular routes, especially to the GCC countries. The 2 female Nepalese migrants interviewed in São Paulo, Brazil78 had traveled such long distances in a completely unknown place, where they did not speak the local language, only for domestic work.

Case Study 2: The Case of Trafficking to Kuwait79

A man who worked in a garment factory in Sindhupalchowk district, wanted to go overseas and work to earn more money, but was medically unfit. The agent offered to send his wife ‘CD’ abroad, and later paid all expenses for processing the visa and buying the air tickets. The couple was first taken to India, where they were informed that ‘CD’ would be sent first to Dubai and then to Kuwait. However, she was taken straight to Kuwait accompanied by a Nepali man, where a Kuwaiti and a Nepali man received her. Reaching there she realized that she was actually sold for prostitution. She was constantly shifted from one house to another, where she was sexually exploited.

Finally, she was able to contact her husband in Nepal over phone, who went to the Metropolitan Police Division to file a complaint. The police contacted the Kuwait Consular Office in Kathmandu. Help was sought from an NGO in Nepal as well as in Kuwait, and ‘CD’ was eventually rescued.

After coming back home to Nepal, the victim filed a complaint with the local police. During the investigation, the police identified the main trafficker, the local agent of Kathmandu and all the others

72. The Asia Foundation (2013) p. 9 73. Information received from Nepal Police during field visit to Nepal. 74. IOM (2018) p. 184-185 75. The Asia Foundation (2013) p. x 76. Until 2010, the Government of Nepal forbade Nepali women to seek employment in the informal sector such as domestic work in GCC countries. Labour migration was permitted only in the formal sector for Nepali women. In 2010, the government revoked the ban and data showed a surge in the number of female migrant workers in GCC countries. The age restrictive ban for women was reinstituted in the domestic work sector in 2012. 77. The Asia Foundation (2013) p. 40 78. During field visit to Brazil. 79. The detailed version of the Case Study is at Annexure 1.

26 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL who were involved in this case. In New Delhi also 2 suspects were identified, a Nepali and, an Indian. It also transpired that the Nepali agent in Kuwait had an office dealing in manpower placements.

During their investigation, the police also discovered that Nepalese women were being trafficked/ smuggled to Iraq, Oman, Turkestan, Kyrgyzstan, and Tajikistan, mostly for prostitution. These women were primarily promised jobs of domestic work, before they were sent to these countries.

The Nepal police got an Red Corner Notice issued and got the accused in Kuwait – ‘SL and ML’ arrested and brought back to Nepal. The offender couple is currently80 in jail, and their trial is ongoing, but the verdict is awaited.

The dynamics of irregular migration and trafficking in persons in Nepal (and the South Asia region) is largely rooted in political instability, economic disparities, environmental factors, deep poverty and food insecurity. Nevertheless, it also reflects the aspirations of relatively educated and wealthy individuals and families to settle in ‘western’ developed countries. Some of these factors are not only push factors that encourage one migrate, but may also be influential in the choice between regular or irregular migration. For example, migrants believe they will never be able to get a visa or work permit to live and work in America or Europe, and therefore they take these risky steps, to reach their destination somehow and be assimilated.

2.1.2.2 Pull factors of destination/ transit countries

1. Employment opportunities – Migrants from Nepal take irregular methods and routes to reach destination countries, especially US, or in Europe, due to their perception of getting employment and economic opportunities, which are either scarce or under-paying in their own country. In numerous stories, smuggled migrants mentioned the low wages earning them an average of less than USD 650 a year in Nepal, and prospects for finding work being slim. In this migrant’s story, he was promised, by his uncle working in the US, around USD 2,000 a month for work in a grocery store, which led to the ultimately decision of taking the smuggled route to the US81. The demand for migrant labour from around the world is a major pull factor, and Nepal fills in that gap, by emerging as a major labour sending country over the last few years.

2. Regularization of residence status – Stories from those who have successfully reached and living in US/ Europe with very few who returned/ deported back, leads other Nepalese migrants to believe that even if they use irregular methods to reach the destination countries, eventually they will get asylum status or work permits or some sort of regularization. This prompts them to take the risk of irregular/ smuggled migration.

Interviews with Nepalese migrants82 in São Paulo, Brazil also revealed that they were aware of the ‘relative ease’ of obtaining asylum status before they entered the country onwards to the US. Sometimes a few migrants also stay back for about 6 months to work and earn money to fund the onwards journey to the US. Similar stories emerge from migrants in Portugal, who were promised ‘easy jobs, and easy residency permits’ in the country83.

3. Diaspora networks - Diaspora networks of family or friends are increasingly important pull factors in the West. The liberal political economies of the West and Europe was what exerted the pull; those states which offered generous asylum recognition rates and access to the labour market attracted lot of migrants/ refugees from all over the world, in turn ‘inspiring’ others from their villages and towns to reach similar destinations84. 80. As on October 2018. 81. Kumar Ravi (2012) New guys on the border: Nepalis join the Latin trek to America. Public Radio International. Retrieved from: https://www.pri.org/ stories/2012-07-31/new-guys-border-nepalis-join-latin-trek-america. Accessed: 23 September 2018 82. During field visit to Brazil on 25th August 2018. 83. Budal Aashima (2018) Paperless reality: Transnational parenthood and undocumented Nepalese in Portugal. Instituto Universitario de Lisboa. Retrieved from: https://www.om.acm.gov.pt/documents/58428/296039/Tese+de++Mestrado+-+paperless+reality+-+Transnational+parenthood+and+ undocumented.pdf/bc581e2e-00bd-4d3e-9387-f22374990200. Accessed: 06 January 2019 84. Parkes Roderick (2015) Migration: new ‘push’ and ‘pull’ dynamics. European Union Institute for Security Studies. Retrieved from: https://www.iss. europa.eu/sites/default/files/EUISSFiles/Brief_34_Migration.pdf. Accessed: 12 December 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 27 Figure 8: Push and pull factors

Country of Origin- Nepal Transit Countries-Latin Destination Countries- PUSH FACTORS and North America US, Europe PULL FACTORS PULL FACTORS

- Poverty - Political factors - Unemployment - Inadequate government responses - Low wages - Employment - Visa on arrival - Political instability opportunities - Online visa application - Environmental factors - Regularization of - Easy asylum and work - Social factors residence status permit processes - Aspirational migration - Standard of living - Corruption and - Remittances - Diaspora networks - Gender dimensions complicity of officials - Catch, rest, and release policies

Analysis of the push and pull factors - An exploration of the push and pull factors of Nepalese smuggled migrants and trafficked persons further reveals:

• The push factors emerge as far more influential than the pull factors and the most significant push factor seems to be the need to escape from instability, either political or economic or societal pressures that inhibit a stable life. Migrants who are willing to take the risk of irregular migration or agree being smuggled are more potentially motivated by very strong push factors, which are much stronger than the pull factors. • Aspirational migration - is often more influential than the absolute ‘need’ in a decision to migrate, which is why many of the smuggled migrants from Nepal are not worst-off in their own country. • The tipping point comes when migrants hear ‘success’ stories or observe returnees who come back in a better situation. They are prompted to finally decide to leave and do not hesitate to use services of smugglers for the said purpose.

2.1.3 Profile of smuggled and irregular migrants

Profile of migrants - There is no precise information on the profile of smuggled migrants from Nepal. References are being drawn from other reports on irregular migrants. In one study85 of the 59 transit Nepali migrants in India who were interviewed, approximately 74 per cent were female, indicating the high prevalence of irregular female migrants many of whom are believed to transit India en route to the GCC countries. Of the migrants interviewed, 90 per cent were below the age of 30, with 57 per cent having obtained a secondary education. A greater number of the male migrants had obtained a higher level of education than the female migrants. Approximately 74 per cent of migrants had not obtained any work experience prior to migrating.

Another report86 identifies most of the irregular Nepalese migrants as young adults, with similar profiles for documented and undocumented workers.

Information from various stakeholders in Nepal87 suggests that the really poor people go to India for work; those who have some money go to the Middle East through government/ other regular/ or irregular channels; and the economically sound go to the US or Europe, since they can afford to pay high fees to the smugglers.

85. The Asia Foundation (2013) p. 41-42 86. Verité (2012) Labor Brokerage and Trafficking of Nepali Migrant Workers. p. 29. Retrieved from: https://www.verite.org/wp-content/uploads/2016/11/ Humanity-United-Nepal-Trafficking-Report-Final_1.pdf. Accessed: 20 October 2018 87. Information received during field visit to Nepal.

28 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Media reports, information received from Nepal Police and documented case studies mention of smuggled migrants from all walks of life, and not only those with shaky careers or financial problems in Nepal. These include a , school teachers, civil engineer, and other professionals88.

Information received from various stakeholders in Brazil89 and Colombia90 acknowledged that almost all the migrants from Nepal were young men, usually in the age groups of 25 - 35 years. The Humanized Assistance Service for Migrants set up at the Guarulhos International Airport in São Paulo rarely found female migrants (from Nepal, Bangladesh or India). Interviews conducted with 14 Nepalese migrants91, 12 men and 2 female migrants, living and working in São Paulo suggested very few numbers of women were reaching Brazil. No Nepalese female migrants were reported transiting from Colombia. Brazilian and Colombian authorities stated that the Nepalese migrants do not travel alone, but normally reach Brazil and Colombia in groups of at least 5 - 6 persons. They are often non- English speaking. In all the news reports researched for this study, none of the Nepalese smuggled migrants spoke English or Spanish.

Geographical distribution of migrants in Nepal - The Labour Migration Reports of 201492 and 201793 shows that recipients of labour permits came from every district in the country, with the top ten source districts being – Dhanusa, Jhapa, Mahottari, Morang, Siraha, Saptari, Nawalparasi, Sunsari, Sarlahi, Rupandehi, Bara, Rautahat, Parsa, Kapilvastu, Banke, and Kanchanpur - from the Eastern, Central and Western Tarai region.

Based on the push factors analyzed above, it may be possible that these districts may also be sending irregular/ smuggled migrants out of Nepal to the US/ Europe.

Media articles, information received from Nepal Police and documented case studies suggest that smuggled migrants are mainly from the following villages/ towns/ districts – • (Province No. 5, ) • Dobhan (Palpa District, Lumbini Zone of southern Nepal) • Manigram (Tilottama Municipality, Rupandehi District) • Myagdi (Gandaki Pradesh Province) • Nepalganj (Sub-Metropolitan city in Banke District in the Terai plains of Nepal) • Rukum (Province no. 5 and Karnali Pradesh Province in mid west Nepal, has seen around 700 people smuggled to the US through Mexico94 ). Nepalese migrants interviewed in São Paulo, Brazil95 provided information on where they lived in Nepal prior to their migration - • Manigram (2 men) • Butwal • Chitwan (southwestern part of Province No. 3) • Pokhara (tourist city on Phewa Lake, in central Nepal) • Sindhupalchowk96 (part of Province No. 3) • Kaski (Gandaki Pradesh Province) • Gulmi (part of Province No. 5) • The 12 interviewed men in Brazil were in the age group of 22-42 years and the 2 women were 35 and 42 years respectively.

Information received from Nepal Police97 points to the emergence of new districts in western and central Nepal as source areas for smuggled migrants to the US. These districts are Dolpa, Jumla,

88. Gautam Krishna Hari (2016) Getting smuggled into the USA: Nepali immigrants’ story. My Republica. Retrieved from: https://myrepublica. nagariknetwork.com/news/getting-smuggled-into-the-usa-nepali-immigrants-story-1/. Accessed: 10 December 2018 89. Information received during field visit to Brazil. 90. Information received by GLO.ACT Project Officer, Nepal, during field visit to Colombia. 91. During field visit to Brazil. 92. DOFE (2014) p. 23 93. DOFE (2017) p. 13 94. Information provided by Nepal Police gathered from unofficial sources. 95. During field visit to Brazil. 96. Trafficking related literature and stakeholders also identify Sindhupalchowk as a major source district for trafficking in persons. 97. Information received from Nepal Police during field visit to Nepal.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 29 Humla, Kalikot, Baglung, Mustang, Manang and Rasuwa. A novel reason for enrichment of people from these regions is the collection of the Yarsagumba plant98 , also referred to as ‘Himalayan Viagra’, and the most expensive bio-resource available in the world today. The plant is collected and sold to the Chinese, making huge sums of money for the people of this region, which has led to many of them going to the US/ Europe, through regular or irregular means.

Use of Passports

Desk review of literature99 and field interviews with government and non-government stakeholders in Nepal, Brazil and Colombia has revealed that increasingly Nepalese migrants are using Indian passports (due to it being a Commonwealth country, and the being eligible for visa on arrival in 58 countries); and Bangladeshis are using Nepalese passports. The of Brazil is conducting an investigation100 into a ‘fake’ Bangladesh passport, which was recovered by the police during a raid conducted on alleged Brazilian smugglers/ traffickers.

In 2009, seven Nepali immigrants (individuals of Bhutanese origin living in refugee camps) who were traveling on fake passports were detained at the Guatemala City airport. In November 2010, an Indian citizen, ‘AVM’, was arrested after leaving Guatemala and arriving at the New Delhi, India airport carrying 31 Indian passports. It is suspected that these documents were being used by Nepalese to enter Guatemala and then were sent back to India to be used by another group traveling to Guatemala. Because many Nepalese migrants travel on fake Indian passports, and because Guatemalan and Mexican officials lack training and language skills, it is likely that many of the immigrants they detain and identify as Indian are in fact Nepalese101.

In 2012102, the Delhi police in India came across the curious case of 105 passports found at the international airport in an unclaimed baggage. The police claimed that this involved human smugglers taking migrants to the US.

Colombian authorities find103 that due to the increased attention on Nepalese irregular migrants entering Colombia, they are now found to be using Bangladeshi passports.

One of the interviewed104 Nepalese migrants in Brazil informed that the smugglers told him to make Bhutanese identification documents and passport. There were around 22 people in his group using Bhutanese documents. An NGO assisting migrants in Brazil mentioned105 a case of a Nepali who came with a Bhutanese passport and wanted assistance to convert back to Nepali citizenship. Reports of Nepalese and other nationalities getting fake passports made in Kathmandu had started appearing way back in 2003106. Kathmandu was then deemed to be emerging as a global centre for human smuggling. Foreigners with forged passports were transiting through Kathmandu to reach their desired destinations. For instance, Iraqis with fake Portuguese passports travelling to Europe were found to transit through Kathmandu. In another case, Chinese nationals using fake Japanese passports bought in Bangkok were found transiting Kathmandu en route to Kansai. A Chinese national travelling on a stolen US passport with the photograph changed chose Kathmandu as a transit point to get into the US. Nepali passports were being supplied to Indian nationals. Human smugglers used the modus operandi of what the police termed ‘PC’ – photo-changed – on genuine passports107.

98. Yarsagumba lifts living standard of rural Nepalis (2016) The Himalayan Times. Retrieved from: https://thehimalayantimes.com/business/yarsagumba- lifts-living-standard-of-rural-nepalis/. Accessed: 20 November 2018 99. Verité (2012) p. 77 100. Information received during field visit to Brazil. 101. Verité (2012) p. 79-80 102. Irfan, Hakeem (2012) From India to the U.S. via the jungles of Guatemala: Investigation exposes route taken by human traffickers. The Daily Mail. Retrieved from: https://www.dailymail.co.uk/indiahome/indianews/article-2089652/From-India-U-S-jungles-Guatemala-Investigation-exposes-route- taken-human-traffickers.html#ixzz433bgiXeN. Accessed: 29 September 2018 103. Information provided to Project Officer, GLO.ACT, Nepal during field visit to Colombia. 104. During field visit to Brazil. 105. During field visit to Brazil. 106. Gaunle Shiva (2003) Kathmandu Connection. Nepali Times. Retrieved from: http://archive.nepalitimes.com/news.php?id=3476#.XFCD7C2B3-Y. Accessed: 29 October 2018 107. Ibid.

30 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 2.1.4 Modus operandi and smuggling routes

The routes for irregular migration to the US and Europe are varied. Nepalese, Bangladeshi, Indian, Pakistani, and Sri Lankan irregular migrants are smuggled overland and by air to the US and Europe. Sometimes irregular Nepalese migrants have also been rescued from boats en route to US and Europe.

2.1.4.1 Smuggling of migrants to the United States of America

The United States official Census of 2000, records the number of Nepalese living in the US at 9,399, which rose to 140,000 in 2015108. Despite rigorous research from all sources, the only figures of Nepalese nationals detected in a situation of illegal residence within the US are available from UNODC report109 as follows - 59 (2012), 83 (2013), 5 (2014), 33 (2015), 25 (2016), and 21 (1 Jan - 30 June 2017). No other figures are available from any other source on undocumented Nepali migrants living in the US.

Figure 9: Number of South Asian migrants who attempted to enter the US through the southern border without proper documentation

Source: Los Angeles Times110

Desk research coupled with field interviews in Nepal, Brazil and Colombia indicate that Nepalese (along with other South Asians, namely, Bangladeshi and Indian) migrants travel to the US using several circuitous routes. A snapshot of some of the news articles (for the past 10 years) specifically mentioning Nepalese migrants are highlighted as hereunder –

• In 2007, 65 Nepalese were arrested for crossing the US border irregularly; in 2011, 104 were arrested111. • In 2009, the navy of El Salvador found 25 Nepali migrants among 76 migrants, aboard a boat in the Pacific.The boat had migrants from as far away as Bangladesh and Eritrea112. • In 2010, a Delhi based criminal network was believed to have sent at least 100 Nepalese and Indians to the US113.

108. Nepalese in the U.S. Fact Sheet. Retrieved from: http://www.pewsocialtrends.org/fact-sheet/asian-americans-nepalese-in-the-u-s/. Accessed: 23 September 2018 109. UNODC (2018) p. 50 110. Bengali Shashank (2016) They gambled, and lost. Los Angeles Times. Retrieved from: https://www.latimes.com/projects/la-fg-immigration-trek- america-bangladesh/. Accessed: 10 December 2018 111. Kumar Ravi (2012) 112. Verité (2012) p. 80 113. Verité (2012) p. 77–78

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 31 • In January 2011, 4 Nepali migrants were rescued from a stolen tractor-trailer truck in Chiapas, southern Mexico holding 219 immigrants in “subhuman conditions.”114. • In May 2011, 6 Nepali migrants and 12 migrants who said that they were from India were discovered among 513 migrants, crammed into two tractor-trailer trucks, in Chiapas, Mexico115, 116. • A 2011 report117 highlights that the Mexico National Migration Institute (Instituto Nacional de Migracion – INM) detained almost 70,000 migrants in 2010, out of which some 2,300 were from Asian and African countries, namely India, China, Nepal, Sri Lanka, Ethiopia, Eritrea and Somalia. • In May 2011, Mexican police in the state of Puebla detained 9 Nepali migrants on their way to the US 118. • In 2011, 150 persons of Indian and suspected Nepalese origin applied for asylum in Mexico. They all disappeared after receiving temporary asylum and it is believed that they travelled irregularly to the US. In 2010, 17 Nepalese migrants officially registered at a migrant shelter in Tapachula, Mexico. They were suspected of having attempted, but failed to reach the US border119. • In August 2013, investigators from Colombia’s Attorney General’s Office uncovered 9 migrants, most from Nepal or Bangladesh, hidden in a house in the Caribbean coastal city of Turbo. Authorities had found 27 Nepalese and 19 Bangladeshis in the first four months of 2013, compared to 49 and 30 respectively for the entire 2012120 . • A 2014 report121 mentions Peruvian suggesting smuggling of Nepalese migrants from Peru into Brazil, leading to the development of new criminal networks. • In November 2014, the Federated States of Micronesia detected a vessel near the island of Yap carrying 53 individuals, primarily from India and Nepal, being smuggled to the US122. • In May 2015123, Colombian police discovered 48 undocumented migrants in Urabá. Migrants from Cuba, Nepal, Somalia, Bangladesh, India, Afghanistan and Pakistan, were on their way to the US. • In 2015, in the Darién province of Panama a US bound boat was captured, with 13 Bangladeshis, and 7 Nepalese among others124. • News articles from 2015-2016125 mention of several Nepalese, along with Bangladeshis and Pakistanis traveling through the Darién Gap, being escorted by Colombian coyotes126. • In June 2016, charges were filed against a Honduras national captured in Nicaragua with 7 migrants from Nepal trying to smuggle them into US127. • In August 2017, authorities in Colombia128 struck against what appears to be one of the largest and most sophisticated human smuggling rings, arresting 35 alleged smugglers. The ring allegedly funneled over 3,000 people from countries such as Cuba, India, Nepal, and

114. Verité (2012) p. 80 115. Gutierrez Tuxtla (2011) Illegal Trail through Mexico - US-bound Nepali workers held. The Kathmandu Post. Retrieved from: http://kathmandupost. ekantipur.com/printedition/news/2011-05-18/illegal-trail-through-mexico.html. Accessed: 23 September 2018 116. Mexico Police Stop 500 Migrants (2011) Insight Crime. Retrieved from: https://www.insightcrime.org/news/brief/mexico-police-stop-500- migrants/. Accessed: 10 December 2018 117. Ramsey Geoffrey (2011) Routes to the US: Mapping Human Smuggling Networks. Insight Crime. Retrieved from: https://www.insightcrime.org/ news/analysis/routes-to-the-us-mapping-human-smuggling-networks/. Accessed: 29 November 2018 118. Detiene la SSP a 183 inmigrantes de Centroamérica, África y Asia (2011) Excelsior. Retrieved from: https://www.excelsior.com.mx/node/735747. Accessed: 25 October 2018 119. Verité (2012) p. 79–80 120. Parkinson Charles (2013) Colombian Coyotes Smuggled South Asian Migrants. Insight Crime. Retrieved from: https://www.insightcrime.org/news/ brief/asia-latin-america-human-smuggling-operation-uncovered-in-colombia/. Accessed: 10 December 2018 121. Gurney Kyra (2014) New Peru Human Smuggling Groups Points to New Migration Patterns. Insight Crime. Retrieved from: https://www.insightcrime. org/news/brief/new-human-smuggling-groups-peru-points-changes-migration-patterns/. Accessed: 25 October 2018 122. United Nations Office on Drugs and Crime (2016) Transnational organized crime in the Pacific: A Threat Assessment. UNODC, Regional Office for Southeast Asia and the Pacific. p. 40. 123. Daugherty Arron (2015) Wave of Human Smuggling Hits Colombia. Insight Crime. Retrieved from: https://www.insightcrime.org/news/analysis/wave- of-human-smuggling-hits-colombia/. Accessed: 25 October 2018 124. Jackson Joe (2015) Crossing the Darién Gap: US-bound migrants marooned in Panama jungle. Al Jazeera. Retrieved from: http://america.aljazeera. com/articles/2015/5/2/migrants-marooned-panama-jungle.html. Accessed: 10 December 2018 125. Motlagh Jason (2016) 126. Coyote is a colloquial Mexican–Spanish term referring to the practice of across the U.S.–Mexico border. Source: Wikipedia. Retrieved from: https://en.wikipedia.org/wiki/Coyote_(person) Accessed: 21 May 2019 127. Sierra Jorge (2016) Operación Mesoamérica, golpe a trata de personas en la región, Proceso Digital. Retrieved from: http://www.proceso.hn/component/ k2/item/126955-operacion-mesoamerica-golpe-a-trata-de-personas-en-la-region.html. Accessed: 09 October 2018 128. Bargent James (2017) Colombia Takes Down Human Smuggling Ring Linked to Urabeños. Insight Crime. Retrieved from: https://www.insightcrime. org/news/brief/colombia-takes-down-human-smuggling-ring-linked-urabenos/. Accessed: 10 December 2018

32 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Somalia towards the US and Canada. • In 2017, in a first instance of its kind, 7 Nepalese between the ages of 22-42 were deported by the US in a special chartered plane. The men had been arrested by the US border security at different points in time entering from Mexico129. • A July 2018 report130 narrates the story of 2 Indians, also mentioning Nepalis and the route from India to Guayaquil, Ecuador – Capurganá, town in northern Colombia - on to the Panama border, on their way to the US. • In another story131 from February 2018, a fascinating tale is weaved of the Tapachula town in Mexico, which is a common stopover for ‘extra-continentales’ (as the migrants are called in this town) traveling north toward the US. The largest groups tend to be from India, Pakistan, China, Bangladesh, Nepal, and Congo. This town had a restaurant run by a Bangladeshi, providing native food to the South Asians - indicative of the deep networks that support the migrants throughout their journey.

Figure 10: Map of Central and South Americ

Source: On the World Map132

These above snapshots are an indication of only some of the news articles that were researched during desk review, clearly bringing out information on Nepalese smuggled migrants along with other South Asians trying to use multiple circuitous routes to reach the United States. The critical understanding is that even if there are no precise numbers available, there are sufficiently large numbers of migrants trying to enter the US, encountering serious dangers, extreme difficulties and abuse and violence at the hands of smugglers.

129. Khatry Ram (2017) Taste of Trump: US Charters Plan to Deport 7 Nepalese Men, a First for Tribhuvan International Airport. South Asia.com. Retrieved from: http://www.southasia.com.au/2017/06/08/taste-of-trump-us-charters-plane-to-deport-7-nepalese-men-a-first-for-tribhuvan-international-airport/. Accessed: 25 November 2018. 130. Yates Caitlyn (2018) How Panama Became the Most Treacherous Crossing Point for Migrants on a Long Journey to the U.S. Time. Retrieved from: http:// time.com/5340697/migration-america-panama/. Accessed: 10 December 2018 131. Markham Lauren (2018) This Route Doesn’t Exist on the Map. The New Republic. Retrieved from: https://newrepublic.com/article/146919/this-route- doesnt-exist-map. Accessed: 10 December 2018 132. Retrieved from: http://ontheworldmap.com/south-america/map-of-central-and-south-america.html. Accessed: 10 November 2018.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 33 A. Routes from Nepal to the United States of America and the use of Brazil and Colombia as transit countries

Desk research, and field interviews have highlighted the following multiple routes being taken by Nepalese migrants from Nepal to their ultimate destination, the US (and also Canada). 1. Nepal – India – Abu Dhabi or Dubai or Qatar - Bolivia or Ecuador or Peru - Brazil – Colombia - Panama - Costa Rica – Nicaragua - Honduras or El Salvador - Guatemala - Mexico and onwards to the US.

Figure 11: One of the smuggling routes from Nepal-India to US from Ecuador

Source: The Hindustan Times133

2. Nepal – India – Abu Dhabi or Dubai or Qatar – Brazil or Colombia - and onwards to the US. 3. Nepal – Thailand / Singapore / Philippines / Cambodia - Bolivia or Ecuador or Peru – Brazil – and onwards to the US. 4. Nepal – Abu Dhabi or Dubai or Qatar – Peru or Ecuador or Brazil - and onwards to the US. 5. Nepal – Abu Dhabi or Dubai or Qatar – Bolivia or Ecuador or Peru – Brazil - and onwards to the US. 6. Nepal – Abu Dhabi or Dubai or Qatar – Guatemala - and onwards to the US. 7. Nepal – India - St. Dominican Republic – Haiti – Cuba - Chile and onwards to the US.

In 2014, Haiti emerged as a new port of choice for Indians (which may include other South Asians also) trying to enter the US134. Smugglers are increasingly using Haiti as a transit instead of the earlier Guatemala-Mexico route. In fact, it was a lead from the Haiti Consulate in Mumbai, India that alerted the authorities. After reaching Haiti and sometimes living there for a while, the migrants leave from the coast of Haiti to Cuba or Bahamas. Depending on the situation and patrolling by US Coast Guards, smugglers take them from Cuba to Miami and Florida.

133. Rao Hitender (2018) Dodging , death: The route Punjab’s young take for the American Dream. The Hindustan Times. Retrieved from: https://www.hindustantimes.com/punjab/the-american-dream-punjab-to-us-via-panama-jungles/story-KX70oZuBIeHgmesZF2QYoO.html. Accessed: 26 December 2018. 134. Sharma Ankur (2014)

34 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Case Study 1 already suggests the emergence of Haiti as a new transit point for Nepalese migrants reaching the US.

8. In very few cases, route taken was Nepal – India – Thailand – Azerbaijan, from where smugglers were to take the migrants to US. When some of the migrants were left stranded in Azerbaijan they complained on the Nepal Police websites and were retrieved back home135.

Bangladeshi and Indian migrants also use the above-mentioned routes from their respective countries. In addition, Bangladeshi migrants sometimes reach Kathmandu, Nepal first and then take the routes as above. An older route that Indians (and possibly Nepalese traveling from India) have taken is from New Delhi – Istanbul, Turkey – Guatemala – Mexico and then to the US136.

Figure 12: South Asian migrants using Brazil as transit point for entry into the US

Source: Proceso Digital137

B. Emergence of Brazil as a transit point

As previously mentioned in the pull factors of the transit/ destination countries, Brazil has emerged as a transit and often a destination country for smuggling networks taking migrants from South Asia to the US. The route northward from Brazil to the United States is a new one138. The large-scale migration from Haiti to Brazil startVed after the Haiti earthquake in January 2010, when Brazil still had a strong economy, and welcoming immigration policies, offered the promise of a better life for many. Haitians and many African nationalities came looking for a permanent settlement in Brazil. However, the economic and political situation has changed since then.

Brazil also attracted smuggling networks, especially in the past five years, bringing in South Asians, mainly, Bangladeshis, Indians, and Nepalese (in that order)139. Nepalese and Indians consider Brazil only as a transit point in their journey to the US. However, lately, Brazil has also become a destination country for many irregular migrants from Bangladesh and Pakistan, who have claimed asylum/ or economic migrant status and are settled for good, instead of moving further to the US140.

135. Information received from Nepal Police during field visit to Nepal. 136. Irfan, Hakeem (2012) 137. Sierra Jorge (2016) Operación Mesoamérica, golpe a trata de personas en la región, Proceso Digital. Retrieved from: http://www.proceso.hn/component/k2/item/126955-operacion-mesoamerica-golpe-a-trata-de-personas-en-la-region.html. Accessed: 28 October 2018. 138. Markham Lauren (2018) 139. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Brazil. 140. Information received during field visit to Brazil.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 35 Bangladeshis started migrating towards Brazil in large numbers for working as ‘halal’141 butchers for Brazil meat exports to Saudi Arabia. Chapeco (a municipality in the state of Santa Catarina, in the Southern Region of Brazil) is known for its poultry industry, where lots of Bangladeshis were brought through irregular routes with promises of employment in the past 7-8 years.

In 2013, 80 Bangladeshis were rescued from the national capital, Brasilia Federal District. Lured with the promise of receiving a salary of USD 1,500 a month, they had reached Brazil after paying the smugglers USD 10,000 each. The Bangladeshis had entered Brazil without visas from three neighbouring countries of Bolivia, Guyana, and Peru. The police found all the victims living in very bad conditions, with 20 people crammed in a room without food and water142.

Field interviews with various stakeholders in Brazil143 revealed the entry points into Brazil and the outward movement of Nepalese (references to Nepalese would also include Bangladeshi and Indian) migrants –

• Migrants fly in directly to São Paulo, apply for asylum, stay there for a couple of days/ weeks/ months using Brazil as a transit, and then proceed by foot onwards to their final destination to the US. • With the aid of asylum papers, migrants work in Brazil (especially in São Paulo) usually for about 5-6 months, earn and save some money for their onward journey to the US. Retaining their asylum documents, they discard their passports, and travel onwards to the US claiming their identity from the Brazilian asylum papers. o Majority of the South Asians work in Brás district of São Paulo and the Portuguese Rua 25 de Março or as it is simply known as the 25th street during the time their asylum applications are pending/ or those who have chosen to live on in Brazil. • Some migrants having reached São Paulo apply for asylum, and without staying in Brazil, directly fly onwards to Mexico and/ or Colombia and then onwards to the US. • Some migrants having taken asylum papers fly to Jorge Chávez InternationalAirport in Lima, Peru; or El Dorado International Airport in Bogota, Colombia; or Viru Viru International Airport in Santa Cruz de la Sierra, Bolivia – and then onwards to Mexico and US.

Figure 13: Brazil to Bolivia or Colombia or Peru

Source: Map Courtesy - Nations Online Project144

141. Halal food is that which adheres to Islamic law, as defined in the Koran. Source: https://www.bbc.com/news/uk-27324224 142. Saxena Shobhan (2013) At $10,000 per migrant, Bangladeshis take illegal route to Brazil. Times of India. Retrieved from: https://timesofindia. indiatimes.com/world/rest-of-world/At-10000-per-migrant-Bangladeshis-take-illegal-route-to-Brazil/articleshow/20090243.cms. Accessed: 03 September 2018 143. During field visit to Brazil. 144. Retrieved from: https://www.nationsonline.org/oneworld/map/brazil-map.htm Accessed: 01 December 2018. Arrows on the map are traced by the author.

36 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL • From 2012-2015 many South Asian migrants had entered Brasília Federal District through different borders, especially Corumbá145 and Piranhas146. • There have been instances of migrants arriving in Brazil through the Foz do Iguaçu/ Cataratas International Airport in Brazil, located near the Triple Frontier of Brazil, Argentina and Paraguay. • Sometimes, migrants also come into Brazil via the Cataratas International Airport in Brazil, which is closest to the Tres Fronteras, the tri point where the , Peru and Colombia meet. • Nepalese and other South Asian nationalities mostly use flights and enter Brazil at the São Paulo airport. At the airports there are stringent checks and systems are in place; but on land, with surrounding countries, there is just a road with no strict border control structures in several places. Sometimes, South Asian migrants enter Brazil by road from Bolivia or Ecuador or Venezuela, normally on public/ private transports and get in without much checking and obstacles. • The being predominantly used by South Asians for coming into and flying out of Brazil is – Ethiopian Airlines147 (from 2016-2018).

Various stakeholders in Brazil provided numbers148 from their database on the Nepalese migrants reaching São Paulo airport or seeking assistance from NGOs. These numbers may also be a possible duplication of records between NGOs and Police.

Table 2: Database of recorded Nepalese migrants in Brazil149

Name of Agency Year No. of Nepalese migrants Humanized Assistance Service for Migrants – Guarulhos Jan – Dec 2018 75 International Airport, São Paulo Federal Police Office with 2016 27 Federal Prosecutors at 2017 30 Guarulhos International Airport Jan-Dec 2018 94 NGO - Center of Reference and Assistance (CRAI) to 2017- 2018 6* Migrants, São Paulo

2012 3 NGO - CARITAS**, São Paulo 2013 7

2016 6 2018 2 NGO – Migrations and Human Rights Institute (IMDH), Brasilia Federal District 2012-2018 22

* One Nepali with a Bhutanese passport, who was actually a Nepalese national, who wanted to convert back to Nepali citizenship. ** No Nepalese received before or after this period. All live in Brás district of São Paulo as per the addresses given by them. In their database, 2-3 common addresses are repeated for all Nepalese migrants. Their recorded DOB is 1981, 1987, and 1988. Only 2 provided their DOB as 1970 and 1972. CARITAS also recorded Bangladeshi migrants seeking assistance – 2013 (5), 2014 (2), 2015 (1), 2016 (1), and 2017 (10); and Indian migrants – 2009 (2), 2010 (4), 2011 (5), 2013 (2), 2015 (1), and 2018 (2).

145. Corumbá is a municipality in the Brazilian state of Mato Grosso do Sul. Corumbá International Airport connects it to many Brazilian cities and also operates some international flights. 146. Piranhas is a historic municipality near the western limit of the State of Alagoas in the Northeast Region of Brazil. 147. Information received from Immigration Department during field visit to Brazil and from Federal Police Office with Federal Prosecutors at Guarulhos International Airport. 148. During filed visit to Brazil. 149. All information provided by Glo.ACT Project team, Brazil.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 37 Case Study 3: The smuggling of teenagers from India

A large group of teenagers from India arrived at Guarulhos International Airport, São Paulo, Brazil in March 2018150 . They were not accompanied by any adult or any family members. The Humanized Assistance Service for Migrants stationed at the Guarulhos International Airport interviewed them at the airport premises. The teenager boys took the following route from New Delhi, India - Ecuador - Buenos Aires, Argentina - São Paulo. During the interview they claimed that they were being ‘persecuted’ in India.

Under the Brazil Statute of Children and Adolescents Act of 1990, it is incumbent on the authorities to refer these adolescents to the Guardianship Council and accommodate them in shelter homes, and the Humanized Assistance Service could deal with them no further. The Federal Police took the Indian teenagers to a shelter home in São Paulo, where they could stay till they turned 18 years of age, as per the law.

Within a couple of days, one by one, each of these teenagers ‘disappeared’ from the shelter home. During investigation by the Federal Police and from interview of the social worker, it came to light that one boy was shooting films of nearby areas on his iPhone. This boy ‘disappeared’ from the shelter home 2 days later. On other days, there were big cars hovering outside the shelter home and then slowly the other boys also started ‘disappearing’ from the shelter home.

The judge who was inquiring into the matter directed the shelter home worker to get in touch with the Humanized Assistance Service for more information on these teenagers who had gone missing from the shelter home. It was then that the Humanized Assistance Service got to know of the missing teenagers who were received at the airport a couple of days earlier. Officials of the Humanized Assistance Service have a strong suspicion that this entire game plan was for the teenagers from India to reach their final destination, the US. Under the laws of Brazil, under- age unaccompanied children do not need visa to enter Brazil, which was exploited by the handlers of the teenagers. All of them had said that they were facing persecution in India. They seemed well to do and had in their possessions iPhones. The big cars in most likelihood were from the smuggler’s gangs, to get them out of the shelter home and smuggle them to the US.

No further information was available with the Humanized Assistance Service or the Federal Police or any other department on the whereabouts of these teenagers, or their onward journeys and routes or where were they ultimately headed.

C. Colombia as a transit point

Colombia’s geography makes it a natural launching point for migrants hoping to transit through South America to the US. Colombia has a land border extension of more than 6000 kilometers and most of them are marked by jungle and fluvial passages. This strategic location is partly why Colombia remains a key strategic hub for human smuggling networks. No matter where they arrive, in South America, migrants who intend to travel northward by land must pass through Colombia. There are multiple routes to enter Colombia, which is mostly through Capurganá151 , which is roughly the halfway point in many migrants’ journeys152 :

• Migrants typically enter the country by land from Ecuador, Venezuela and Brazil. • For African migrants, the most common path is to arrive in Brazil by plane or cargo ship and to then travel to northern Colombia in cargo trucks153. o Author’s note - since a sizeable number of migrants from Nepal Bangladesh and India are also reaching Brazil, some of them could possibly be taking the same route.

150. Information provided by Humanized Assistance Service for Migrants during field visit to Brazil. 151. Capurganá is a tourist destination of the municipality of Acandí on the northwestern coast of the Gulf of Urabá in the Colombian department of Choco and adjacent to the border between Colombia and Panama. 152. Yates Caitlyn (2018) 153. Author’s note - since a sizeable number of migrants from Nepal Bangladesh and India are also reaching Brazil, some of them could possibly be taking the same route.

38 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL • South Asian migrants also directly fly into Colombia, with visa from the Embassy at New Delhi, India154. • Another cheaper option is to arrive in Brazil or Guyana and then travel through the Amazon rainforest to the Brazilian city of Manaus, generally on a small boat, before crossing into Colombia. • The other option is Ecuador, which is the most popular with East and South Asian migrants, with most migrants arriving either to Quito or Guayaquil by plane, and then taking buses north to Colombia, whose border is just 150 miles away.

The route depends on the migrants’ nationalities and their smugglers’ preferred routes. Ecuador, Brazil, and Guyana serve as the most common entry points for international migrants given the countries’ lax visa requirements155.

Majority of the number of recorded irregular migrants in the country are from Cuba and Haiti. Following the 2015 earthquake, the number of Nepalese has also increased significantly156. Many Nepalese (Bangladeshi and Indians too) are reaching Colombia because of the easy visa procedures. Colombian visa can be applied online in New Delhi, India. Since the personal presence of the applicant is not required, it is easy for the travel smugglers to obtain visa for the migrants to reach Colombia, and then move onwards to the US157.

Figure 14: Irregular migrants recorded in Colombia

Source: GLO.ACT Colombia Report158

Colombian authorities further informed159, that from 2015-2018 around 2000 Nepalese migrants came in contact with the concerned authorities. The 10 main routes of smuggling of migrants for all nationalities within Colombia are160 -

1. Ipiales – Pasto – Popayán – – Medellín – Turbo o Necoclí. 2. Cúcuta – Medellín – Turbo o Necoclí. 3. Maicao – Santa Marta – Cartagena – San Andrés.

154. There is no Colombian Embassy or Consulate in Nepal and Bangladesh. 155. Yates Caitlyn (2018) 156. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Colombia. p. 6 157. Information provided during Nepal and Colombia field visit. 158. UNODC (2016) GLO.ACT Colombia. p. 13 159. During field visit to Colombia by the Project Officer, GLO.ACT, Nepal. 160. Presentation of the National Police of Colombia, made available by Project Officer, GLO.ACT, Colombia and Nepal, 2018.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 39 4. Rio Putumayo – Puerto Asís – Huila – Tolima – Pereira – Medellín – Turbo. 5. – Buenaventura – Juradó. 6. Maicao – Santa Marta – Cartagena – Montería – Turbo. 7. Mocoa – Neiva – Ibagué – Pereira – Armenia. 8. Cúcuta – Sincelejo – Montería – Turbo o Necoclí. 9. Arauca – Medellín – Turbo. 10. Leticia – Bogotá - San Andrés Island.

4. Critical areas that have been identified by the police are161 - • Incoming migrants: Maicao, Cúcuta, Arauca, Leticia, San Miguel, Ipiales y Tumaco. • Transit: Pasto, Popayán, Cali, Medellín, Buenaventura, Bahía Solano, Juradó, Neiva, Ibagué, Eje Cafetero , , Santa Marta, , Cartagena, Sincelejo y Montería. • Downtown: Bogotá Entrada y salida de Colombia – vía aérea. • Departure areas: Turbo, Capurganá, Sapzurro, Juradó y San Andrés Island y Providencia.

Migrants are mostly mobilized at night, and are transported by improvised routes through trails and rivers often using public transport companies.

Figure 15: Men from Nepal and India board boats in Turbo, Colombia, headed north

Source: Los Angeles Times162

D. Migrant’s journey from Brazil - Colombia - Panama – Mexico – US

Multiple stories capturing the journey of smuggled migrants after they have reached Brazil or Colombia and en route to the US have been written almost like whodunit thrillers, with plots and sub-plots, with migrant’s stories, their trials and tribulations, and the role of assisting smugglers. Encapsulated below are stories from various sources where explicit references were made to Nepalese, Bangladeshi and Indian migrants. Mention of Nepalese migrants in the paragraphs below would automatically include Bangladeshi and Indian migrants as well.

161. Ibid. 162. Linthicum Kate (2016) Crossing the Darién Gap. Los Angeles Times. Retrieved from: https://www.latimes.com/projects/la-fg-immigration-trek- america-colombia/. Accessed: 23 November 2018

40 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Brazil to Colombia - Nepalese migrants after reaching São Paulo (either flying in directly or coming in from Bolivia or Peru), move to Rio Branco, the capital city of the remote Amazonian state of Acre163(Refer Figure 13). Getting to Acre by plane from São Paulo takes about eight hours and requires at least one connection; by road, as most migrants go, the journey lasts about three days. From Rio Branco, they arrange for a five-hour trip to the Peruvian border. Just over the Peruvian border, the migrants enter the town of Iñapari. From here vehicles transport them to Peru’s interior. Often, they stay over in Puerto Maldonado, a town along the Madre de Dios River, toward which the Transoceanic Highway runs, some four or five hours from the border. From there, migrants can make their way to Lima, Peru and into Ecuador.

From Quito, the capital city of Ecaudor, migrants go by bus to Tulcán, the city in Ecuador nearest to the Colombian border164. Migrants are transported north to Capurganá, in Colombia, from where they cross the Darién.

It is at this point, on the teetering edge of South and Central America, that the migrants’ journey turns from dangerous to deadly. The Darién Gap, or “the jungle,” as most migrants refer to it, is the most treacherous stretch of the journey north165.

Figure 16: One of the routes from Nepal to the US through Brazil – Colombia - Darién Gap

Source: The Wall Street Journal166

Colombia to Panama – In 2016, the Panama border patrol reported that it apprehended almost 20,000 migrants arriving irregularly from Colombia, while migrants who registered their transit with Colombian authorities came in at close to 34,000 for the same year. As per data of the journalist covering the smuggling story, half of the migrants come from India, and many others come from Cuba, Nepal, Bangladesh, and Eritrea167.

163. Markham Lauren (2018) 164. Vick Karl, Poole Lisette (year not available) Smugglers Inc. A voyage through the fraught, life-changing and totally routine $35 billion human-smuggling business. Time. Retrieved from: http://time.com/smugglers-inc/. Accessed: 10 December 2018 165. Markham Lauren (2018) 166. Schaefer Sara Munoz (2015). 167. Yates Caitlyn (2018)

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 41 Figure 17: Number of Nepalese migrants traversing the Darién Gap

Source: Al Jazeera168

Bijao - a ramshackle hamlet on Colombia’s Cacarica River (in the Bajo Atrato region, Chocó) is a traditional junction for migrants. By land or sea, the main jumping-off point for crossings into Panama is Turbo, a Colombian port town on the Gulf of Urabá (Refer Figure 16). Turbo, the northern terminus of the Pan-American Highway in South America, is the gateway to the Darién frontier.

Here, Urabeño smugglers usually charge between USD500 and USD700 to shuttle a migrant from Turbo to Panama, a five-hour trip in a leaky boat. Alternatively, some migrants opt for a harder, cheaper inland route that starts at the coastal town of Capurganá or Sapzurro and goes through a series of hamlets that dot Darién National Park, which covers a large part of the central and west side of the Darién Gap169.

Figure 18: Map of the Darién Gap and the break in the Pan-American Highway between Yaviza, Panama and Turbo, Colombia

Source: Wikipedia170

168. Jackson Joe (2015) 169. Motlagh Jason (2016) 170. Retrieved from: https://en.wikipedia.org/wiki/Turbo,_Colombia#/media/File:Darien_Gap_OSM.svg. Accessed: 22 September 2018. Disclaimer - The boundaries and names shown, and the designations used in all the maps in this report, do not imply official endorsement or acceptance by the United Nations and the UNODC.

42 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL The Darién Gap171, a 10,000-square-mile rectangle of swamp, mountains, and rainforest that spans both sides of the border between Colombia and Panama, is a lawless wilderness, teeming with everything from deadly snakes to anti-government guerrillas. The region is now seeing a flow of migrants from Africa, Asia, and other parts of the world, passing through the Darién region, and has become a new route for travelers from as near as Cuba and as far as Nepal172. The entire expanse, a road less maze of 40 miles that travelers have to cross on foot and in boats, is dominated by narco- traffickers and Cuba-backed guerrillas who’ve been waging war on the government of Colombia since 1964.

Figure 19: Nepalese migrants, heading to the US, lie exhausted on the ground at a border checkpoint after crossing the Darién Gap

Source: Los Angeles Times173

It’s easy to understand why any sane person would leave grim prospects of unemployment or poor wages in their own country behind. Harder to grasp is how migrants from Nepal, Bangladesh or India end up on the southern edge of the Darién Gap, half a world away from home, without the faintest idea of the grueling trials ahead. It seems just as well that they are ignorant of the dangers. It takes approximately three weeks for migrants from South Asia to reach from their countries to the Darién Gap174.

While Panama turns back anyone who disembarks without a passport, it allows in those emerging from the jungle route without documentation because there isn’t a nearby Colombian outpost to return them to. There also aren’t direct flights from Panama to Africa and Asia175. Many Africans and Asians who make it to Paya176 have ditched their passports long before, often on the advice of human smugglers in Brazil who warn that they will be deported if they have documents showing their visas have run out; others never had legal travel documents177.

171. Retrieved from: https://en.wikipedia.org/wiki/Darién_Gap Accessed: 02 October 2018 172. Schaefer Sara Munoz (2015) 173. Motlagh Jason (2016) 174. Bengali Shashank ( 2016) 175. Motlagh Jason (2016) 176. Schaefer Sara Munoz (2015) 177. Paya is a corregimiento (sub-division) in Pinogana District, Darién Province. Source: https://en.wikipedia.org/wiki/Paya,_Darién

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 43 Figure 20: A chart shows the number and nationality of migrants captured in or near Paya, Panama, during a one- month period in early 2016

Source: Outside Magazine178

Panama deports migrants back to Colombia where they can attempt the journey again through the Darién Gap, stay in Colombia, or head back to their countries179. In many cases, migrants spend months in Capurganá after being deported from Panama without the money or strength to try again. For migrants who have already traveled across continents and spent tens of thousands of dollars, giving up and returning home is simply not an option.

Figure 21: Migrants from Nepal and Bangladesh in the Darién Gap

Source: Time180

Panama – Mexico – US – The common route onwards from Panama is - Costa Rica, Nicaragua, on to Honduras, Guatemala, and into Mexico181 (refer Figure 10). Authorities from Panama state that migrants from Nepal, Bangladesh and Somalia have less money and therefore, travel overland, but sometimes they also come in by sea182. At the border with Panama, Colombian guards turn back, and then the Panama’s National Border Service Senafront intercepts the migrants. The Senafront considers the migrants as “consensual victims”, and provide humanitarian assistance to migrants, while gathering information to share with international groups like Interpol. The migrants, who mostly

178. Schaefer Sara Munoz (2015) 179. Motlagh Jason (2016) 180. Yates Caitlyn (2018) 181. Ibid. 182. Markham Lauren (2018)

44 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL arrive without travel documents, spend a few weeks at Senafront bases to be processed by immigration officials. Their embassies are alerted in case of any emergencies. The immigration service then releases them in the capital, Panama City, as irregular transitory migrants, with instructions to leave the country. If they remain beyond an unspecified period, they are deported. Over the last two years, many have headed to Hostel Miami, a three-floor, USD 10-a-night guesthouse in the rundownSanta Ana district183.

After crossing Panama including the Darién Gap, migrants reach Costa Rica only to travel onward by sea or road to Nicaragua. They pass through Honduras and Guatemala hidden inside compartments in buses and cars before they get to Mexico, their gate to the United States184.

Guatemala to Mexico – According to estimates by Mexican authorities, there are more than 350 unofficial crossing points between Mexico and Guatemala. Other points include river crossings, using raft ferries or zip lines – along Usumacinta River, or Suchiate River, which form a portion of the border between Guatemala and the Mexican state of Chiapas. Migrants must hike along the train tracks to Arriaga, a 320 kilometer trek that can take up to nine days, to board a train and head north185.

Mexico – shares a 3,155-km border with the US and is the final destination of “illegal aliens” - a tag the Immigration and Customs Enforcement (ICE), the US agency tasked with enforcing immigration laws, chooses to describe them before they enter US. The States on the US side bordering Mexico are - California, Arizona, New Mexico and Texas. On the Mexico side the States are: Baja California, Sonora, Chihuahua, Coahuila, Nuevo Leon, and Tamualipas186.

Prior to 2010, smuggling networks were using the asylum system in Mexico to get the migrants legally to the northern border with the US187. A network of Indian lawyers in Mexico were also reported obtaining temporary asylum for Indian migrants, who would use this status to be able to freely travel to the border with the US, giving them a safer and cheaper way to get to its border. However, in late 2010, Mexico altered the asylum system, disallowing asylum seekers to travel outside of the State in which they applied for asylum. Following the change, the number of Indian asylum seekers in Chiapas diminished significantly. Authorities believed that many of these Indian immigrants could have been Nepalese188.

Tapachula, in the Chiapas region of Mexico is a common stopover for extra-continentales (as the migrants are called in this town) and a key transit hub on the Mexican-Guatemalan border for smuggled migrants traveling north towards the US and Canada. The State of Chiapas, located along the narrow isthmus in North America’s topographic waistline, acts like a funnel through which nearly all migrants must pass.

183. Jackson Joe (2015) 184. Jackson Joe (2015) 185. Rao Hitender (2018) 186. UNODC (year not available) Smuggling of migrants from the Northern Triangle to the United States. Retrieved from: https://www.unodc.org/ documents/toc/Reports/TOCTASouthAmerica/English/TOCTA_CACaribb_migrantsmuggling_to_US.pdf. Accessed: 19 November 2018 187. Hitender Rao (2018) 188. Verité (2012) p. 79-80

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 45 Figure 22: A map showing the route many migrants take with the help of smugglers to get to US and Canada

Source: CBC News189

The immigration centre in Tapachula is the largest in Latin America. African and Asian migrants, whose countries do not have deportation agreements with Mexico, line up outside to apply for a temporary transit visa190. Migrants after being released from the Tapachula’s immigration detention center, Siglo XXI, get a salvoconducto an official government safe passage document that requires them to leave the country within a few days.

From Tapachula, migrants buy tickets to Reynosa, Matamoros, Tijuana, Nuevo Laredo - border towns from which one can slip from Mexico into the US. One of the reports191 mentions 5 Nepalese migrants reaching Casa del Migrante in Tijuana, looking to spend the night. The shelter Director, Father Patrick Murphy, wondered how did they reach from Nepal, which was 8,000 miles away.

Figure 23: Waiting to enter the United States

Source: Los Angeles Times192

189. Ibid 190. Laventure Lisa (2017) Central American corridor a dangerous route for migrants heading to Canada. CBC News. Retrieved from: https://www.cbc.ca/ news/world/african-migrants-mexico-dreams-canada-1.3992471. Accessed: 12 December 2018. 191. Ibid. 192. Zavis Alexandra (2016) Haitians, Africans, Asians, Los Angeles Times. Retrieved from: https://www.latimes.com/projects/la-fg-immigration-trek- america-tijuana/. Accessed: 11 October 2018

46 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL E. Conclusion - Critical enabling factors of six nations in Latin America

For good reason, it turns out, smuggling networks have purposefully routed their clients through the same six transit or staging countries in Latin America on the northward march to the US southwestern border: Ecuador, Brazil, Colombia, Panama, Guatemala, and Mexico. Beyond ‘Catch, Rest, and Release Policies193’, these six nations all feature several distinct enabling geopolitical factors, which proved critical to the forward progress. These are: politically passive governments indifferent to trans-migration and US security concerns, weak government institutions and budgets that preclude direct action, formal policies that unintentionally assisted the smugglers (such as ‘catch’ the migrants; provide them some food and ‘rest’; and ‘release’ back into the borders from where they were found or grant them brief stay and release them within the country with requirement to leave it in the specified number of days), and the corruptibility of border and airport customs officials194.

The 2014 State Department report195 stated that Colombian border security “remained an area of vulnerability” in part because only 1,500 of the country’s 180,000 national police officers were devoted to border security - elsewhere. In turn, Panama has left the Darien to the smugglers as well. Panama continued a “struggle to exert sovereignty in the underserved Darién region,” through which thousands of smuggled migrants pass every year.

But also highly emblematic of all of these critical enabling factors is Guatemala, which has been described as a ‘super-highway’ of virtually unimpeded human smuggling to Mexico. The human smuggling industry has become so politically and economically powerful that at times it has completely co-opted government control over border and customs police. Border control on Guatemala’s south and north border is largely non-existent196.

Guatemala and Ecuador became transit countries for smuggled migrants from India (Nepal and Bangladesh) when both introduced visa waiver schemes for Indian nationals in recent years, which were then used as intermediary countries to enter the US197.

Bolivia, neighbouring Brazil, is a very popular transit hub of migrants arriving from South Asia and also other refugees arriving from other countries, especially due to its visa on arrival policy. Large numbers of migrants enter into Brazil from Bolivia walking through its porous borders198.

Throughout Latin America’s migrant trail, a fine line exists between official corruption and routine business. Anecdotes and reports of bribes paid to officials for passage through a checkpoint or across a border, including incidents of physical or sexual exploitation of migrants by state officials, have been documented for many years. At the same time, instances of law enforcement agencies facilitating the safe passage of irregular migrants - with the support of communities through which migrants pass have also been reported. The practical and legal uncertainties about the relationships between irregular migrants, migration facilitators and law enforcement leave a grey area when identifying distinctions between corruption, human smuggling and regular migration199.

All research and literature consulted for the present report show that irregular migration from Nepal to the US is interesting for several reasons: - • The creation and lifting of a visa exemption created new trafficking and smuggling corridors in Guatemala and Mexico. • Visa on arrival in Ecuador and online visa application system at Colombian Embassy in New Delhi, India being misused by smuggling networks.

193. Ibid. 194. Term derived from - Bensman Todd (2016) The Ultra Marathoners of Human Smuggling: How to Combat the Dark Networks that can move Terrorists over Dark American Borders. Homeland Security Affairs Essay. Retrieved from: https://www.hsaj.org/articles/10568. Accessed: 10 October 2018 195. Bensman Todd (2016) 196. US Department of State (2014) Country Reports on Terrorism. Retrieved from: https://www.state.gov/j/ct/rls/crt/2014/239409.htm. Accessed: 19 December 2018 197. Bensman Todd (2016) 198. Hakeem Irfan (2012) 199. Information received during field visit to Brazil.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 47 • The asylum system being abused by smuggling networks in all transit countries, especially in Brazil and Mexico. • The ways in which smuggling and trafficking networks morph to adapt to new circumstances.

2.1.4.2 Smuggling of migrants to Europe

Many Nepalese arrive irregularly in Europe with the help of human smugglers, with a misplaced belief that poverty, general hopelessness due to the political impasse in Nepal, alleged political intolerance and the earthquake of 2015 would guarantee them legal stay in Europe and access to attractive benefits and jobs. Unaware of very strict international legal grounds and a rigorous process for granting refugee status, they seem convinced that mere physical presence in Europe would easily earn them refugee status. Many South Asians, including Nepalese, travel legally to Middle Eastern countries up to Erbil in northern Iraq, where their passports ‘disappear’ upon arrival. They then proceed irregularly via southern Turkey to Istanbul before heading to Bulgaria or Greece200.

Figure 24: From South Asia to Europe

Source: Global Study on Smuggling of Migrants, 2018201

People from Nepal, Bangladesh and Sri Lanka (apart from departing from their own countries) largely come to India, where they join Indian migrants on the land and air routes heading to Europe. Chennai, New Delhi, Mumbai, Kolkata, Bangalore and Jalandhar are important transit cities in India202.

The smuggling of South Asians to Europe occurs mainly via Central Asia and the Russian Federation, the Islamic Republic of Iran, Turkey and Greece through the Western Balkans and occasionally via West Africa203. Other lesser-used pathways occur through the Gulf countries, where migrants reach through regular processes. Sometimes Nepalese (Bangladeshis, and Sri Lankans) pass through India first, regularly or irregularly, prior to flying to Europe204. A number of Nepalese migrants have been apprehended whilst attempting to enter Turkey via the country’s eastern and southern borders. The available information suggests that in these instances Turkey served as a transit point en route to European destinations and that it is common for migrant smugglers to be involved205.

200. Danelo David (2017) People smuggling in Latin America. In: People Smugglers Globally (Coyne John, Nyst Madeleine, eds.). Australian Strategic Policy Institute. Retrieved from: https://globalinitiative.net/wp-content/uploads/2017/10/people-smuggling-internals-for-john.pdf. Accessed: 11 November 2018 201. Wostey Shubhash (2017) Nepali asylum seekers in Europe. The Kathmandu Post. Retrieved from: http://kathmandupost.ekantipur.com/news/2017-05- 07/nepali-asylum-seekers-in-europe.html. Accessed: 28 October 2018 202. UNODC (2018 - II). p. 116. 203. Saha KC (2012) Irregular migration from India to the EU: Punjab & Haryana Case Study. CARIM-India Research Report, 28. Robert Schuman Centre for Advanced Studies, San Domenico di Fiesole, European University Institute. p. 12. Retrieved from: http://www.india-eu-migration.eu/media/CARIM- India-2012-28.pdf. Accessed: 25 October 2018. 204. European Commission, Directorate General (DG) for Migration and Home Affairs (2015) A study on smuggling of migrants - Characteristics, responses and cooperation with third countries, Final report. European Union, DG Migration and Home Affairs, Brussels. Retrieved from: http://www.emn.lv/wp- content/uploads/study_on_smuggling_of_migrants_final_report_master_091115_final_pdf.pdf. Accessed: 09 September 2018 205. Jayasuriya, Sunam (2016) p. 190

48 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Migrant smuggling through sham marriages - In August 2018, searches and arrests were synchronized in Romania and Poland by Europol, against an organized crime group involved in recruiting, smuggling and trafficking men and women from India and Nepal into the European Union206. About 15 migrants had been smuggled for the purpose of entering into sham marriages, and it seemed that the numbers were much higher. Each migrant paid approximately EUR 12,000 to the smugglers for the full range of services, including the journey to Europe, entry to Germany, application for a residence permit, as well as the arrangement of the wedding ceremony.

Mention is made in at least one report of Nepalese migrants using Russia as transit for onward movement to Eastern European countries, with the assistance of smugglers207. No other reports were found indicating use of Russia as a transit country for being smuggled into Europe. However, anecdotal evidence from Nepal Police suggests otherwise208.

Nepali migrants have also been found joining the routes used by Syrian refugees to Europe209. This report mentions of Greek coast guards picking up migrants from Syria, Afghanistan, Nepal and Pakistan.

Smuggling of migrants / irregular migration from Nepal to Portugal

An academic research paper210 traces the stories of several undocumented migrants from Nepal in Portugal and finds that there are a substantial number of them having taken various means and routes. In one of the stories, a female migrant, who was a civil engineer but was working as a school teacher in Nepal, recounts her desperation to migrate abroad for a better pay and lifestyle, being enjoyed by all her other friends who were living abroad. She wanted to go to Canada, but was advised by the agent who asked her to go to Portugal via France due to the ease of legal procedures. She and her husband negotiated and bargained with the agent and agreed on an amount of Euros 17,000 for two people. She first went to France on a tourist visa, posing as ‘choreographer’ as a part of a crew for a cultural festival, with false papers and identification. She recounts how the agent provided her false information on almost everything with respect to availability of jobs, acquiring a legal status and how the agent cheated her by over charging for everything.

Another story is of a man, who himself chose to go to Portugal leaving behind his wife and son, in search of a better life. He made the initial journey to Holland on a tourist visa, being sponsored by another Nepali in Holland, who he personally did not know. He paid Euros 6500 to the agent only to reach Holland. After staying a week in Holland, he made the journey to Lisbon, Portugal.

Similar stories are recounted throughout the research paper of Nepalese obtaining Schengen tourist visa to different destinations and then taking the flight to Portugal. The researcher concludes that almost all undocumented Nepalese migrants in Portugal have been smuggled211.

It is interesting to note that an International Seminar on Migration and Labour Exploitation of the Nepalese in agriculture in Portugal was held in October 2018212 – indicating that the number of Nepalese migrants in Portugal is sufficiently large enough with multiple challenges of forced labour, trafficking and smuggling, thereby attracting such focused attention. Another Migration Conference of June 2018213 in Lisbon had several topics on Nepalese migration of men and women to Portugal, for labour exploitation, again highlighting the seriousness of the issue in Portugal.

206. UNODC (year not available) Report on Smuggling of Migrants from Nepal (Unpublished). Retrieved from: https://www.unodc.org/documents/.../cps/ Nepal_-_Country_Profile.docx Accessed: 14 November 2018 207. EUROPOL (2018) Migrant Smuggling and Sham Marriages: Organized Crime Group Dismantled. Retrieved from: https://www.europol.europa.eu/ newsroom/news/migrant-smuggling-and-sham-marriages-organised-crime-group-dismantled. Accessed: 02 December 2018 208. Centre for the Study of Labour and Mobility (2012) Ten Nepalis Stranded in Russia. The Kathmandu Post. Retrieved from: https://ceslam.org/index. php?pageName=newsDetail&nid=2646 Accessed: 19 November 2018. 209. Information received during field visit to Nepal. 210. Migrant crisis: Macedonia shuts Balkans route (2016). BBC. Retrieved from: https://www.bbc.com/news/world-europe-35763101. Accessed: 24 September 2018 211. Budal Aashima (2018) 212. Ibid. 213.Retrieved from: http://www.cies.iscte-iul.pt/np4/percent7B$clientServletPathpercent7D/?newsId=1845&fileName=Cartaz_c_prog_12_out1.pdf. Accessed: 06 January 2019

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 49 The Trafficking in Persons Report of 2017214 noted an increase in the number of labour trafficking victims from Bangladesh, India, Nepal, and Pakistan in 2016. In one YouTube video215, information is available on two Nepalese businessmen and one Portuguese man who were under trial in 2017 for trafficking of 23 Nepalese from a farming company.

2.1.4.3 Smuggling of migrants and trafficking in persons from Nepal to SouthAfrica

The Republic of South Africa is the main destination for smuggled migrants and trafficked persons in the South African region and within Africa at large. It is also an origin and transit country for trafficking towards Europe and North America; and for trafficking and smuggling to and from Latin America and Asia216. According to police sources, well-established criminal networks are smuggling migrants to South Africa from India, Pakistan and Bangladesh. The majority transit through the United Arab Emirates, Qatar, East Africa and various Southern African Development Community (SADC) 217.

Smuggling of migrants – South Africa is confronted with the challenge of a high level of irregular migration, with the majority of irregular migrants coming in from neighbouring countries of Mozambique, Zimbabwe and Lesotho218. Detailed statistics are available in the White Paper on the profile of migrants reaching South Africa, but there is no mention of any Nepalese migration into the country.

There is no official information or official data available on smuggling of migrants from Nepal into South Africa. As regards route for other South Asian nationalities, stakeholders informed219 of Bangladeshis and Pakistanis using Dubai – Kenya / Mozambique – Johannesburg, South Africa route. Sometimes Bangladeshi and Indians use India – Dubai - Ethiopia to Johannesburg. They come in more from land borders after coming into neighbouring countries of South Africa. By the time they reach in South Africa, their identities have changed multiple times. They mostly have fake documents when caught at airports by immigration.

An NGO that works in partnership with the Department of Home Affairs, Government of South Africa and assists in the pre-screening process for migrants/ travellers at the borders for victim identification informed220 of an incident in early 2018. The NGO came across one Nepali man in his early 30s crossing into the border of South Africa. He informed them that he had been offered a job for 15,000 South African Rands (approximately USD 1,076) per month. He had a proper passport and employment contract documents, but he had arrived on tourist visa, which was the first sign of something being amiss. On later enquiry by the NGO, the job contract was found to be fake although this man had genuinely believed that his contract was valid and he would get that high salary. Although the NGO could recall only one such incident involving a Nepalese man, there is a possibility of many more such cases, which may have gone undetected.

Information received from other stakeholders highlighted that more Bangladeshis are coming in, especially those who were in back at home and wanting to earn quick money to pay off the debts. Sometimes these migrants came into the Johannesburg airport and headed straight out to Lesotho via a connecting flight. They did this to avoid intense security checks at the Johannesburg airport. After reaching Lesotho they just walk across the porous borders back into South Africa to avoid all documentation checks and start working for low wages or illegally.

South Africa as a transit - Irregular migrants from South Asia whose final destination is Australia have for many years been using the primary transit route through Malaysia, Thailand and Indonesia.

214. UNIVERSIDADE DE LISBOA Portugal 26-28 June 2018. Retrieved from: https://www.migrationconference.net/tmc2018/program.pdf. Accessed: 06 January 2019 215. US Department of State (2017) Trafficking in Persons Report. Retrieved from: https://www.state.gov/j/tip/rls/tiprpt/countries/2017/271266.htm. Accessed: 02 January 2019 216. Voice of Nepal TV (2017). Retrieved from: https://www.youtube.com/watch?v=rohN6itiywk. Accessed: 30 November 2018 217. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT South Africa 218. Ibid. 219. Department of Home Affairs (2017) White Paper on International Migration for South Africa. Retrieved from: www.gpwonline.co.za. Accessed: 29 November 2018 220. During field visit to South Africa.

50 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL However, lately smugglers have also been using South Africa as a transit with the alternative routes as follows - (a) Pakistan–Islamic Republic of Iran–Turkey–South Africa–Australia; and (b) Pakistan– South Africa–Australia221. However, details on Bangladeshis, Indians or Nepalese using these routes are not available.

Government statistics222 give numbers of temporary and permanent resident stay and work permits issued to Nepalese in 2014 as 36, whereas in the same year 6,195 were issued to Indians, 3,103 were issued to Bangladeshis, and Pakistanis were given 4,551 permits. No information is available from official or unofficial sources of number of undocumented migrants from South Asia, especially Nepalese migrants living in South Africa.

However, the Embassy of Nepal in South Africa has received many complaints of labour exploitation and of smuggling of Nepali nationals223. As per their information, Nepali migrants are using transit airports either from New Delhi, India or Bangladesh or Sri Lanka to reach South Africa, because of strict checks at the Kathmandu airport in Nepal. Chinese and Indian businesses and especially, Indian restaurants employ large number of Nepalese work force.

Most Africans see South Africa as the easiest country of transit to reach Europe or the Americas and they believe it is easier to go through it. It is reported that Ireland is a destination of smuggled migrants from South Africa, because visa is exempted for those holding a South African passport224. Namibians and nationals of Botswana are exempted visa for travel to the UK. Taking advantage, nationals of other African countries try to get a legally or illegally and travel to Ireland and then further onto Europe. For both Ireland and UK – regular channels are also used but with or those that are obtained illegally225.

Author’s note - There is a possibility of South Asian nationalities using this modus operandi as it would be fairly easy to make a South African passport because of the large native Indian population and the sizeable number of Bangladeshis and Pakistanis living in South Africa.

2.1.5 Profile of migrant smugglers

Expanding networks of smugglers have emerged to meet the demand of migrants seeking assistance to travel, as is evident from all the research and literature available on the subject including interviews with all stakeholders in the countries under study, and from interviews of Nepalese migrants226 in Brazil. Comprehensive and specific information on the organized criminal smuggler groups/ networks was not available for purposes of this report. However, interviews with stakeholders and desk review have brought out some names of organized criminal groups as well as individual smugglers.

The structure of these networks is consistent with the typologies outlined by the UNODC227, with individuals playing different roles in the network, including as brokers or recruiters, facilitators, coordinators and organizers, transporters and guides, accommodation and service providers, and financiers. In South Asia, migrant smuggling remains to be an under-researched and under-reported crime, and there is a lack of official data on smuggling and smugglers. Further, the number of smugglers is hard to estimate, and it has been reported that some former irregular migrants use their knowledge to become migrant smugglers228.

221. Ibid. 222. Jayasuriya, Sunam (2016) p. 191 223. Statistics South Africa (2015) Documented immigrants in South Africa, 2014. Retrieved from: http://www.statssa.gov.za/publications/P03514/ P035142014.pdf. Accessed: 02 January 2019 224. Information received during field visit to South Africa. 225. Ibid. 226. Ibid. 227. During field visit to Brazil 228. UNODC (2010) Issue Paper: A Short Introduction to Migrant Smuggling. UNODC, Vienna. Retrieved from: http://www.unodc.org/documents/ human-trafficking/Migrant-Smuggling/Issue-Papers/Issue_Paper_-_A_short_introduction_to_migrant_smuggling.pdf. Accessed: 12 August 2018 and UNODC (2018 - II). p. 119.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 51 Smugglers within the South Asia region form a multi-scaled and well-networked (or loose) structure starting right from the place of origin of migrants through transit to the destination countries. Smugglers working at multiple scales differ in terms of the role they play, the forms of power they can exercise and benefits/ income they gain. Despite these differences, they work closely through more or less established strategies or formal/ informal institutions229.

Smuggling networks in Nepal – India - Multilayered smugglers include local village sub-agents of smugglers, main smugglers, logistic handling smugglers, transit country smugglers and destination country smugglers, each performing various specific roles- from motivating people for irregular migration, to dealing with State authorities for fake documents to facilitating travel230. The case in India and Nepal is similar where local smugglers recruit migrants and migration progresses with the support received from main and transit country smugglers. However, there is limited information relating to the types/ profile of migrant smugglers in India, Nepal and Bangladesh.

All the case studies of irregular Nepalese migrants mentioned in this report have shown the active involvement and network of Nepalese smugglers - right from the recruitment phase in the village/ towns, to providing assistance to the migrant in Delhi, India along with another Indian agent/ smuggler and onwards to the transit countries. Every stage of movement of the migrant has an involvement of a Nepalese agent/ smuggler.

El Comercio, a Peruvian newspaper reported a case in 2013 of the Human Trafficking Division of the Peruvian National Police arresting a Bangladeshi and a Nepalese national, for allegedly facilitating the entry of at least 50 Nepalese into the US231.

Figure 26: Arrested Nepali national by the Peruvian National Police

Source: Insight Crime232

Human smugglers live in ‘good middle-class urban neighbourhoods’ in India, and some even in luxurious neighbourhoods. Several studies have highlighted the involvement of Indian and Bangladeshi smugglers in migrant smuggling in transit or destination countries such as Turkey, Greece, Spain, Germany, Italy, Thailand, Malaysia and Indonesia233. In India and Bangladesh, smugglers, possess rich social capital and strong social networks involving politicians, government officials and local community groups, which help to legitimize the smuggling business234. Those who interact directly with irregular migrants are usually sub-agents of the main smugglers. Main smugglers operate from big cities such as, Delhi and Dhaka and rarely meet migrants. Similar characteristics could be attributed to smugglers operating in Nepal due to the commonalities of smuggling of migrants in the

229. UNODC (2015) 230. Saha, KC (2012) 231. Jayasuriya, Sunam (2016) p. 193; and Information received from Nepal Police. 232. Cayeron dos extranjeros por el presunto delito de tráfico de migrantes (2013). El Comercio. Retrieved from: http://archivo.elcomercio.pe/sociedad/lima/ cayeron-dos-extranjeros-presunto-delito-trafico-migrantes-noticia-1642449. Accessed: 12 November 2018 233. Wells Miriam (2013) Ecuador Breaks Up Nepalese Human Smuggling Ring. Insight Crime. Retrieved from: https://www.insightcrime.org/news/brief/ ecuador-busts-nepalese-human-smuggling-network/. Accessed on: 10 December 2018 234. Saha KC (2012)

52 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL region.

Most smugglers are middle-aged, between 31 and 50 years old, while younger smugglers, between 21 and 30, work as sub-agents of the smugglers in India, mobilizing aspiring migrants of the same age group. Having worked in the business of irregular migration for a longer period meant that those aged between 31 and 50 played a more pivotal role in the smuggling networks. Most smugglers are educated only to the intermediate level. Most smugglers tend to work in ‘normal’, regular jobs while engaging in human smuggling. Smugglers in India are involved in running automobile workshops, restaurants, computer training institutes and travel agencies235.

Potential/ smuggled migrants from Nepal have been reported to use the services of – • Educational consultancies236 and conference consultancies arranging the participation of Nepalese in international courses or events237. This newspaper report mentions that every year around 30,000 Nepali students go to the US, Australia, Japan, the UK, Germany, and Denmark and other countries by paying huge sums to these educational consultancies. However, many of these educational consultancies have been engaged in illegal activities while sending students abroad. Reference is also made to the police238 arresting the owners of 35 consultancies and initiating action against them. • Travel agencies, and cultural troupes have emerged as new recruiters within Nepal. o Cultural groups and troupes traveling to foreign destinations, especially to USA and Europe. Sometimes these groups travel to Japan, South Korea and then people ‘disappear’ from there239. o Smuggling of Nepalese migrants to Portugal is mostly done through obtaining Schengen visa, where the migrant travels to another country as a tourist, and then enters Portugal. The involvement of travel agencies is seen in obtaining these visas by charging high fees. o Nepal police informed that for few years, Nepalese children were taken to National Aeronautics and Space Administration (NASA) study tours, where parents would spend couple of lakhs to send their 16-18 years old children who would often disappear upon reaching there.

Who makes the first contact – Interviews with the law enforcement in Nepal240 revealed that sometimes the migrant first initiates contact with the agent or agency referred to him for purposes of migration. However, in a majority of the cases, the potential Nepalese migrants are always first contacted by a local recruiter/ agent/ educational consultancy/ travel agent, etc. who is/ are also Nepalese.

Perception of migrant smugglers - In source countries of South Asia, those involved in the smuggling process are not necessarily considered exploitative, but sometimes considered as ‘heroes’, who help people escape their difficult situations. Many smugglers rely on their reputations, and so successful ventures generate more business for them241. Case Study 1 in which, Nepalese women were smuggled/ trafficked to Haiti underlines this ‘Stockholm syndrome’ and ‘trauma bonding’ found among migrants. Even though the women and their families were duped of a huge amount of money, they consistently refused to file a police case against the smugglers and continued to believe that the latter were ‘good men’ and will still help them migrate successfully to the US.

Smugglers generally do their ‘marketing’ through word of mouth, using a referral-based system. Migrants have an underlying level of trust, and hence have positive views towards smugglers. Initially, in source countries – presumably those respondents who are planning on undertaking irregular migration with the assistance of a migrant smuggler have not experienced the hardships in

235. Ibid. 236. Saha KC (2012) 237. In Nepal, educational counseling centres/ agencies are broadly called – consultancies. 238. Unscrupulous education consultancies must be tamed (year not available). The Rising Nepal. Retrieved from: http://therisingnepal.org.np/news/6142. Accessed: 11 October 2018 239. Information received from Nepal Police. 240. Information received from Nepal Police. 241. During field visit to Nepal.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 53 transit – may not fully appreciate the risks of transit, or may have been informed by their networks that the risks are worth taking. Conversely, those who have undertaken the journey and experienced hardships may have a different view of migrant smugglers242.

Smuggling networks in Brazil – No specific information on involvement of criminal gangs was received in Brazil during field visit or from desk reviews. The police have no profiling of any specific gang involved in human smuggling into and out of Brazil. But the involvement of local Brazilians as facilitators was a certainty.

The Humanized Assistance Service for Migrants at Guarulhos International Airport informed243 that in a new emerging modus operandi, they have found some cases of Nepalese/ Bangladeshi migrants using lawyers in their origin countries. The lawyer from Nepal/ Bangladesh is already in touch with a lawyer in Brazil; the former even offering recruitment opportunities in some cases. Especially for migrants arriving from Nepal, Bangladesh and India, they already have in their possession, local SIM of Brazil, local currency and the visiting card of a hotel in São Paulo. In at least two instances, one group of Bangladeshis and Nepalese arriving at the Guarulhos International Airport at São Paulo had the same visiting card of a hotel, indicating that both the groups had used the same smuggling networks. Officials of the Humanized Assistance Service believe that there are common smuggling networks and same smugglers due to the similarity of methods and patterns of those coming from South Asia.

Smuggling networks in Colombia – US authorities have highlighted the emergence of previous drug trafficking and arms smuggling criminal groups venturing into human smuggling and migrants en route for ransom in the Darién corridor. Chief among these are - the Clan Úsuga, a.k.a. Los Urabeños, made up of ex-AUC (United Self-Defense Forces of Colombia) members. Los Urabeños has used its links with Mexico’s Sinaloa cartel to spread its network for drug and human smuggling244.

Another Colombian criminal organization, Clan del Golfo, controls another section of the Darién Gap jungle - smuggling drugs and people through its boundaries245.

Smuggling networks in South Africa – Criminal gangs are mostly formed of South Africans, Nigerians, Chinese, Bangladeshi and Thais, who act as smugglers and/ or traffickers246. Many female offenders are also part of these criminal gangs. Recruiters are generally or mainly women, and in the cases of brothels owned by “madams” the exploiter is also a woman. The recruiters for new Bangladeshi labour are from within the large Bangladeshi community settled in South Africa for long. Often human smuggling morphs into trafficking, where victims are first smuggled into the country and then exploited for forced labour.

Smuggling networks in other transit countries - Organized crime groups from Colombia, Russia and China, among others, have taken advantage of the freedom of movement in Ecuador as a prime transit nation due to its extremely lax immigrations regulations enacted in 2008247.

The emergence of the Zetas as a powerful and extremely violent drug cartel involved in human trafficking in Guatemala and Mexico makes Nepali migrants traversing these countries even more vulnerable248.

Case Study 4: The woman smuggler from Costa Rica

A report in Time249 recreates a fascinating story of a woman smuggler Katia –from Costa Rica – where migrants come in from Colombia. In Paso Canoas, a Costa Rican border town facing Panama,

242. Jayasuriya, Sunam (2016) 243. Ibid. 244. During field visit to Brazil. 245. Schaefer Sara Munoz (2015) 246. Yates Caitlyn (2018) 247. Information received from South Africa Police. 248. Wells Miriam (2013) 249. Verité (2012) p. 81

54 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL at least 14 other smugglers, called ‘coyotes’ compete for the migrant . In a series of interviews with the reporter, she laid out her smuggling operation in detail, from the bribe expected at a police checkpoint in Nicaragua to the surprisingly modest monthly profit she pockets from work that outsiders assume is part of a vastly lucrative industry dominated by hardened criminal gangs. Katia has a Delhi contact, with whom she negotiated for providing services at lesser rates @ USD 2,300 than his previous Central American smuggler, who charged USD 2,700 per migrant. Katia’s monthly income from smuggling averages USD 800 - the same as from her day job.

Figure 27: Katia calls the migrants her “baby chickens”

Katia, like her contact in Delhi, isn’t even a full-time smuggler; each has a day job in transport. That’s both logical and the norm. People with routine, intimate knowledge of the mechanics of international travel are best positioned to detect and exploit its gaps.

This story in itself showcases the vast and intricately connected smugglers networks, wherein a female smuggler sitting in Costa Rica is coordinating and working directly with a Delhi, India based smuggler. It also reiterates the presence of a number of female smugglers involved at various stages of the human smuggling processes, as does the next case study.

Case Study 5: The story of Rakhi Gauchan, the female smuggler of Nepalese origin in the US

A Homeland Security Affairs essay250, which presents the key findings of a systematic analysis of US court records about smuggling of ‘special interest aliens’251 , as derived from 19 known prosecutions and a variety of other data between 2001 and 2015, highlights the name of smugglers Rakhi Gauchan from Nepal252 and Kaushik Jayantibhai Thakkar253 from India. The smugglers instructed their clients to defraud the US asylum system with false persecution claims. Mexico City based Rakhi Gauchan coached most of her clients, including a Pakistani client that she believed was a terrorist, on how to offer fraudulent persecution stories most likely to ring well with asylum officers. Gauchan had her clients tell immigration officials that they belonged to persecuted political parties, regardless of their actual affiliation. She once coached a client earlier rejected for Italian asylum, which would have disqualified him for US asylum, to simply invent a new story254.

Rakhi Gauchan was one of the most prolific kingpin smugglers of Islamic world migrants that federal agents had seen in years. She had run smuggling rings for 11 years in Europe and Asia, and told an undercover informant that she moved her operation to Mexico and smuggled about 10 individuals per month into the US. During her long ‘career’, Gauchan delivered scores of Pakistanis, Bangladeshis,

250. Vick Karl, Poole Lisette (year not available) 251. Bensman Todd (2016) 252. SIAs – Referred in the Homeland Security Affairs essay as – ‘Extreme-distance human smuggling networks that transport higher-risk immigrants known as special interest aliens’. 253. United States versus Rakhi Gauchan, Case No. 3:14-cr-0068-DCG TXDW 254. Case No. 4:12-cr-00250-1 TXDS

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 55 and Indians to the Texas and Arizona borders255. She also confided to this agent that she believed a Pakistani client she had smuggled into Arizona was a bonafide terrorist. Immigration and Customs Enforcement agents rushed to track down the Pakistani, finding that he was quite real and living in America, having gained political asylum.

Gauchan charged up to USD 40,000 for Indians and USD 3,000 to USD 4,000 for someone who had already made it to Mexico256. She was arrested in December 2013 when she traveled from Mexico City to San Antonio, Texas. Gauchan eventually pleaded guilty to one count of human smuggling. After spending a year in jail in pre-trial detention, she was sentenced to time served.

Smugglers like Gauchan are compelled to incorporate the promise of asylum into the services they sell on the front end, and to become arm-chair experts in how to game the system. Working the asylum process helps not only to ensure future client recruitment (when the folks back home learn their predecessors gained asylum) but also basic business continuity257.

2.1.6 Conditions and risks facing smuggled migrants

Desk research and interviews with Nepalese migrants in Brazil have indicated that migrants are susceptible to abuse, exploitation, and trafficking, and in part this is due to the costs of migration and the involvement of third parties, often resulting in migrants facing situations of exploitation and trafficking. Smuggled migrants can start a journey using smugglers, who later engage in exploitation or abuse, and the lines between formal definitions of trafficking and smuggling blur. Thus, migrants could experience both trafficking and smuggling along the same route258, as is apparent from Case Study 1 and 2.

Nepalese migrants transiting India often have to spend some time in India to organize the requisite travel documentation, including medical reports, tickets, and visas. They typically reside on the outskirts of the larger Indian cities, and during this period they are very vulnerable to exploitation, including sexual exploitation, and human trafficking. In addition, the smugglers who facilitate the irregular migration through India may in some instances take advantage of or deceive Nepalese migrants259.

Interviews with Nepalese migrants in São Paulo revealed that they were not happy with their work and wanted to move to the US as soon as they could. A 35 years old female migrant who was working in a bakery complained of long working hours, lower wages, in need of medical treatment and a surgery – and not knowing how to get out of her situation.

The increased militarization of the US-Mexico border260 has resulted in ramped up border enforcement, making it imperative for migrants to take increasingly remote routes across the border, as barriers and enforcement close off safer and well-travelled options.

Migrants aspire to invisibility, and this is often their undoing. Far from home and hiding from the law, they may be victimized with virtual impunity. Migrant smugglers know this, and although some work hard to maintain a reputation for reliable service, others do little to ensure the safety and comfort of the people they smuggled. When threatened by law enforcement, they may abandon the migrants, wherever they happen to be at the time, as is evident from all the news reports referred in this Report. Worse, they may hold the migrants hostage, extorting additional payments from family members for their return. Two Nepalese men in their mid-thirties, who were smuggled from Nepal to the US, were held hostage in Haiti261. They had crossed Singapore, China, Brazil, Panama and finally in

257. Tales of ten terrorists who took advantage of the porous U.S.-Mexico border (2017) World Tribune. Retrieved from: https://www.worldtribune.com/ ten-terrorists-who-took-advantage-of-the-porous-u-s-mexico-border/. Accessed: 12 October 2018 258. Bensman Todd (2016) 259. Carling Jørgen, Gallagher Anne T., Horwood Christopher (2015) Beyond Definitions: Global migration and the Smuggling - Trafficking Nexus. Regional Mixed Migration Secretariat. Retrieved from: https://www.prio.org/utility/DownloadFile.ashx?id=552&type=publicationfile. Accessed: 12 November 2018 260. The Asia Foundation (2013) p. 43–45 261. Avendano Ana, Fanning Charlie (2013) Immigration Policy Reform in the United States: Reframing the enforcement discourse to fight human trafficking and promote shared prosperity. Research Gate. Retrieved from: https://www.researchgate.net/publication/287415669_Immigration_Policy_Reform_in_ the_United_States_Reframing_the_enforcement_discourse_to_fight_human_trafficking_and_promote_shared_prosperity. Accessed: 20 December 2018

56 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Haiti, supposedly their last stop before reaching the US, they were held captive in the northern city of Cap Haïtien, with their passports taken. They were kept as prisoners with little food and dirty drinking water and were constantly threatened and demanded money. After they called their families in Nepal and explained their situation, the family got in touch with local Nepalese authorities, and they were finally rescued. This case started as smuggling and turned into trafficking by the restriction of movement, and demand for money.

Stories recounted earlier of migrants crossing the Darién Gap have revealed their susceptibility to being abducted, robbed by bush thugs of the little cash that they carry, becoming weak and exhausted from days of traveling in muggy, 90-degree temperatures, subsisting on crackers and gulping river water, surviving snakes, and an extremely hostile terrain. All of the Bangladeshis and Nepalese that were met by a reporter262, had been robbed at some point during their three-week journey from South Asia to the Darién Gap. In almost all reports, it was stated that migrants from Nepal and Bangladesh did not speak English or Spanish making communication difficult with the local smuggler in the Latin American countries. They were easy targets for violent smugglers and along the migration routes263.

States also have responsibilities towards migrants under the international legal regime and under their own human rights and other obligations. However, sometimes, frontline border and immigration officials participate or are complicit in the various activities at different stages of the smuggling processes. What is more, thousands of migrants are held each year in detention for considerable periods of time while officials attempt to determine if a person is smuggled, trafficked, or an asylum seeker264. These statuses are not mutually exclusive. Another valid reason is that countries where the smuggled migrants are detected don’t have the means (and/or the cooperation of the origin country) to return the smuggled migrants – hence leaving them in detention for extensive periods of time.

Some migrants never reach their destination, and die due to multiple factors. Total number of migrant fatalities recorded worldwide by IOM in 2018 were 3,379265 and 3018 in 2017266. The Labour Report 2017267 provides the number of fatalities of Nepalese migrant workers, in the labour destination countries of Middle East and South East Asia. However, no specific information is available on the number of migrant deaths of Nepalese origin/ smuggled migrants from the Migration Data Portal268 or any other report.

The Labour Report of 2017269 lists out the destination countries where the migrant workers had made rescue requests at the Department of Consular Services. Of the destination countries currently under study for this report, only 2 requests each have been made from US and Cyprus (Europe). There are complaints from Nepalese returning from South Africa but these complaints never made it to the labour report. Although during the field visit to Pretoria, the Embassy of Nepal in South Africa mentioned that number of complaints were received by them from regular/ irregular migrants. From the information received from the Embassy and the Nepal police, it seems that none of the migrants made any police complaints in South Africa. Similarly, during the field visit to Kathmandu, Nepal, it was intimated by the Nepal Police that they had received complaints of returnee migrants from South Africa, and some of the cases were currently under investigation. This information reveals a major gap and challenge in the way authorities are recording the miniscule data that is available on irregular/ smuggled migrants.

Detention and Deportation - Irregular migrants risk everything to try to make it to the US, believing that their chances of finding shelter are better there than in Europe270. Most of them know that

262. Retrieved from: https://haiti.iom.int/nepalese-victims-trafficking-return-home-haiti Accessed: 20 December 2018 263. Motlagh Jason (2016) 264. Laventure Lisa (2017) 265. Davidson Julia O’Connell (2012) Absolving the State: The trafficking-slavery metaphor. Global Dialogue 14:1. Retrieved from: http://www.academia. edu/1831397/Absolving_the_State_the_Trafficking-Slavery_Metaphor. Accessed: 26 October 2018 266. IOM Missing Migrants Project. Retrieved from: http://missingmigrants.iom.int. Accessed: 06 December 2018 267. Retrieved from: http://gmdac.iom.int/missing-migrants-project. Accessed: 06 December 2018 268. DOFE (2017) 269. Retrieved from: https://migrationdataportal.org/data?i=stock_abs_&t=2017. Accessed: 12 December 2018 270. DOFE (2017) p. 25

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 57 immigration is complicated in the US, but they see it as a set of bureaucratic obstacles that are easier to surmount than those in Europe and far easier than what they have endured to get there. Focused, as they are, on simply surviving, it is hard for them to know the extent of the challenges that await them in the US. Applying for, and receiving immigration relief is a cumbersome process that can take years and cost thousands of dollars. It is even harder to manage from detention, where they remain for months, if not years, unless they are released on bond. It’s difficult to find a trustworthy lawyer from detention, and it’s nearly impossible to apply successfully for asylum or other immigration relief on one’s own. Stuck in detention, immigrants often become overwhelmed and give up. Few migrants seem to understand that if they make it across the US border, they might be stuck in detention for months, if not years. Despite travelling thousands of miles of ocean, desert and jungle and all they’ve risked and endured to make it to the US, some do, in fact, finally surrender. And many are deported back.

The Nepal Police271 receives information of at least 10 cases per month from the US embassy in Kathmandu, of deported Nepalese who either did not have passports or who were caught entering irregularly in the US.

Case study 6: The journey of Bahadur Paija from Nepal

Bahadur Paija of Nepal272 reached the US in 2016 four months after he left home, after a perilous journey, which started from his village in western-central Nepal. Along with a group of 15 other Nepalese migrants from different provinces, their journey took them to the US through India - Cambodia - Brazil - Ethiopia - Bolivia - Peru - Ecuador - Panama - Costa Rica - Honduras - Guatemala, and Mexico. Paija claims to have spent nearly five million Nepali rupees (approximately USD 43,938), and along with the other migrants had to give huge sums of money to smugglers in each country, who would ask for money repeatedly for making arrangements for the next destination. In Cambodia the group was kept in hiding in a forest by the smugglers and they survived only on fish for five days.

Figure 28: A group of Nepalese en route to US, hiding in a Cambodian forest

Source: My Republica273

When the group reached Brazil, their passports and other documents were torn and thrown away. They stayed in Brazil for five days without food and water. They narrated stories of death, starvation, and looting along the way. Paija recounted the tales he heard en route to the US - of many Nepalese who reached US through such routes and committed suicide, and the many who had gone completely insane. Although women were not part of their group, he had heard of women of other nationalities being even more vulnerable to exploitation during such journeys, who were sexually exploited many times before they reached the US.

271. Markham Lauren (2018) 272. Information received during field visit to Nepal. 273. Gautam Krishna Hari (2016)

58 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Paija concluded that after spending millions of Nepali rupees and risking life at dozens of places throughout the journey, he realized that the ‘American dream is not worth the risk they took’.

2.1.7 Fees and financing

Financial costs of smuggling are likely to vary depending on the type of destination country, the likelihood of success in getting asylum or work, modes of transportation and the number of transit countries.

Drawing from various sources the UNODC report of 2015274 presents different costs relating to migrant smuggling from Bangladesh and India. Considering that South Asians normally follow the same routes and use similar smuggling networks, it can be safely presumed that Nepalese smuggled migrants would also be charged similar fees275.

Table 3: Estimated costs of irregular migration

Source: UNODC276

The 2018 Global Study on Smuggling of Migrants, reports the cost of smuggling by air route, from Nepal/ India to the United States to be in the range of USD 27,000 up to 47,000277. From India to Europe (Schengen Area) the fees for the air route is around USD 15,000 up to 30,000278. Since Nepalese are known to use India as a transit point, the cost for smuggling migrants from Nepal to Europe via India would also be similar.

274. Ibid. 275. UNODC (2015) 276. Authors Note - Possibly similar fee structures are applicable to smuggling of migrants as well. 277.UNODC (2015); Jayasuriya, Sunam (2016); and Raghavan Reg, Dinsuk Jayasuriya (2016) People smuggling, Field Insights Report: Pakistan. Red Elephant Research, Australia. Retrieved from: http://redelephantgroup.com/wp-content/uploads/2018/03/REPORT- PeopleSmugglingFieldInsights-Pakistan-Feb2016-SM-3.pdf. Accessed: 12 December 2018 278. UNODC (2018 - II). p. 47

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 59 Information received from various sources in Nepal and Brazil279 indicated that the estimated fees paid by Nepalese migrants to enter US are between USD 25,000 minimum - USD 50,000 maximum. The USD 25,000 fee ensures air travel up to Brazil/ Colombia and then by foot till the US. Fee between USD 40,000 to 50,000 ensures air travel using different airports for transit, using fake documents mostly made in different countries.

Figure 29: Snapshot of smuggler’s fees during transit to the US

Source: Time280

Migrants pay fees at different stages of the journey as per demands by smugglers. Snapshots of various reports and Nepalese migrants mentioning the actual fees that they have paid are as follows :

• Urabeño smugglers usually charge between USD 500 and USD 700 to shuttle a migrant from Turbo to Panama, a five-hour trip in a leaky boat281. • Smugglers collect between USD 7,000 and USD 10,000 per person for passage from the Guatemalan border to Reynosa on the border with Texas. In current times, the price per migrant can reach as high as USD 19,000282. • Approximate charge per migrant in Colombia including air travel and false IDs is USD 3,620. For travel by boat or by road with no other support, the approximate charge per migrant is USD 1,560283. • The passage from Colombia to Costa Rica now costs USD 1,900. From Costa Rica north to Mexico, it’s another USD 2,300. The price for the next rungs on the ladder USD 800 for Nicaragua, and USD 700 for Honduras284. • In 2017, authorities in Guatemala released information that for the route from Dubai – Brazil – Colombia – Panama – Mexico – US, the smuggling network charged each person between USD 7,000 and USD 25,000285. • For the route from New Delhi, India – Istanbul, Turkey – Guatemala – Mexico and then to the US smugglers charged around INR 6-12 lakh (approximately between USD 8,600 – 17,250) for facilitating entry into Guatemala and INR 25-30 lakh (approximately between USD 36,000 – 43,100) for the US286. • The fee for being smuggled from India to Western Europe is considered to range between USD 15,000 and 30,000287. Smuggling fees from India to Eastern Europe may be considerably

279. Ibid. 280. During field visits undertaken to Brazil and Nepal. 281. Vick Karl, Poole Lisette (year not available) 282. Motlagh Jason (2016) 283. Browne Mark (2016) Violence and extortion drive Central Americans toward U.S. via Mexico. San Miguel Times. Retrieved from: http://sanmigueltimes. com/2016/06/violence-and-extortion-drive-central-americans-toward-u-s-via-mexico/. Accessed: 10 December 2018 284. Presentation of the National Police of Colombia, made available by Project Officer, GLO.ACT, Colombia and Nepal, 2018. 285. Vick Karl, Poole Lisette (year not available) 286. Parker Asmann (2017) 287. Hakeem Irfan (2012)

60 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL lower. According to a 2011 report, Indian migrants pay between EUR1,500 and 4,500 to be smuggled to Eastern Europe, and USD 1,500-2,000 to continue onwards to the European Union. In 2011, the cost of the entire journey from Bangladesh to Europe was estimated at EUR 12,000-18,000.

Cost structures - Research on smuggling of migrants from Pakistan to Europe and Australia with the primary methodology of interviewing smuggled migrants, asylum seekers and smugglers reveals fascinating insights into the routes from Pakistan, smuggling networks, role of each agent at each leg of the journey and the cost structures288. This report reveals that the ‘traditional half now and ‘half later’ exists as the standard model. A third party guarantor keeps the remaining payment. Sometimes, a joint bank account between an agent and a relative of the migrant may be opened. Many of the journeys are made up of installments and each agent is responsible for only one leg of the trip. Payment between smugglers, particularly across borders, is made through money remittance companies like Western Union.

Almost a similar cost structure model and information was provided during police interviews in Nepal regarding the payments made by migrants to the smugglers at different stages.

Financial Trail289 – With respect to Nepalese migrants, all initial financial transactions are often made in New Delhi, mostly in cash, where money is handed over by the migrant on the instructions of the smugglers in Nepal/ Delhi to some random stranger/ worker in the hotel, etc. This is primarily done to obfuscate the money trail and to prevent identification of the person to whom the money was handed over. Financial transactions are also done through the illegal channels, popularly known as ‘Hawala290’ transactions, in the local languages of India and Nepal. There is thus, very rarely a money trail found in human smuggling cases.

In Brazil the financial flows of smugglers was through Western Union money transfer or Hawala route. In Colombia, the incoming flows enter through international money orders, whereas the national distribution of illicit incomes is distributed by national drafts and bank consignments. The handling and receiving of bank drafts is done mostly by women, who move from one city to another to claim the money, claiming between 3 and 8 drafts a day. For each draft, they charge between 30,000 and 50,000 Colombian pesos (approximately between USD 10-16)291. In South Africa, receiving inflows and outflows of illicit profits is through Western Union, Mukuru Bank and also through several other illicit channels.

2.2 Situational analysis of trafficking in persons from Nepal to SouthAfrica and East Africa

There is no official information or official data available on TIP from Nepal into South Africa. As per information held with Department of Social Development292 Government of South Africa, there are no Nepali women in the shelter homes for trafficked victims.

2.2.1 Trafficking in dance bars in Kenya

Government stakeholders in Nepal, the Embassy of Nepal in South Africa and various news reports mention of Nepali girls/ women being trafficked for work in the dance bars of Kenya. It is believed by some that the girls are often brought to South Africa first and then taken to Kenya. However, as Kenya and Tanzania offer on-arrival visas for Nepalese citizens for three months, the girls/ women may be directly taken to Kenya and Tanzania.

The 2018 Trafficking in Persons Report293 mentions Nepalese and Indian women recruited to work

288. UNODC (2018 - II) p. 119 289. Raghavan Reg, Dinsuk Jayasuriya (2016) 290. All information received during field visits to the project countries. 291. Retrieved from: https://www.investopedia.com/terms/h/hawala.asp. Accessed: 10 November 2018 292. Presentation of the National Police of Colombia, made available by Project Officer, GLO.ACT, Colombia and Nepal, 2018. 293. Information received during field visit to South Africa.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 61 in mujra294 dance clubs in Nairobi and Mombasa. In 2014, news reports295 highlighted around 300 Nepali women in Kenya and Tanzania employed in various dance bars run by Indians. There is also mention of one Nepali running 3 dance bars in Nairobi and Mombasa. It is believed that around 100 Nepali women are working in such bars in Dar es Salaam alone, a major city and commercial port on Tanzania’s Indian Ocean coast. Nepali girls were in the dance bars of South Africa, Nigeria and even Congo and Madagascar. The Nepali word ‘kaanchi296’ is part of the vocabulary of the nightlife of Kenya and Tanzania.

Although the bar owners claim that they only showcase the traditional Indian dance form of mujra in their establishments, the women dancers are forced to put up sensual dance shows with Bollywood songs playing in the background.

Immigration officials at Mumbai international airport in India estimate that in 2013 there were more than 50 Nepali girls going to Africa every month from this airport alone297.

Figure 30: Trafficking of Nepalese girls to dance bars based in the Middle East and African countries

Source: Kathmandu Post298

Reports regularly surface on the Nepali girls being rescued and repatriated from dance bars – 22 girls from Tanzania299; 7 from Kenya in January 2018300; and 21 girls from Kenya301. In March 2018, the Nepal Police busted a trafficking racket in Kathmandu, Nepal sending Nepalese girls to dance bars302.

2.2.2 Profile of trafficked victims

A majority of the women from Nepal were duped by smugglers who, on the pretext of providing job opportunities in Europe or America, took them to Kenya and left them in custody of the bar owners.

294.US Department of State (2018) Trafficking in Persons Report. Retrieved from: https://www.state.gov/j/tip/rls/tiprpt/countries/2018/282683.htm. Accessed: 28 October 2018 295. Mujra is a form of dance originated by courtesans in India during late medieval period of history between 16th and 18th centuries, which incorporated elements of the native classical Kathak dance. 296. Bhattarai Devendra (2014) Ordeals for Nepali maids in African dance bars. Kathmandu Post. Retrieved from: http://kathmandupost.ekantipur.com/ news/2014-03-08/ordeals-for-nepali-maids-in-african-dance-bars.html. Accessed: 28 October 2018 297. Kaanchi is a Nepali word, which is used for a young girl. 298. Thapa Seetashma (2013) Dancing in Dar - Young Nepali women find employment in dance bars in East Africa. Nepali Times. Retrieved from: https:// archive.nepalitimes.com/article/nation/nation-tanzania-nepali-bar-dancers,733. Accessed: 28 October 2018 299. Gautam Manish (2015) Police crack major human trafficking racket, Kathmandu Post. Retrieved from: http://kathmandupost.ekantipur.com/ news/2015-03-18/police-crack-major-human-trafficking-racket.html. Accessed: 29 November 2018. 300. Centre for the Study of Labour and Mobility (2015) 22 Nepali girls held in Tanzania repatriated. Retrieved from: https://www.ceslam.org/index. php?pageName=newsDetail&nid=5968. Accessed: 28 October 2018 301. Indian authorities rescue seven Nepali girls trafficked to Kenya (2018). My Republica. Retrieved from: https://myrepublica.nagariknetwork.com/news/ indian-authorities-rescue-seven-nepali-girls-trafficked-to-kenya/. Accessed: 28 October 2018 302. Retrieved from: https://www.news24.com/Africa/News/at-least-21-nepalese-girls-rescued-from-kenya-strip-clubs-20180721. Accessed: 07 January 2019

62 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Many of the girls/ women were found to be from Baitadi in the west to Taplejung in the east. The age group of girls is between 19-20 and 28-30 years, from all castes and from all over Nepal. Some were married with kids also303.

2.2.3 Modus operandi of traffickers for recruitment.

In addition to false promises of migrating to US or Europe, the recruiters in Nepal find girls/ aspiring models at the traditional dance schools and modeling schools. The traffickers approach the girls and young women and inform them of high salaries in Kenya. They are put through proper photo shoots and the agent sends picture to bar owner in Kenya. The girls are told that they would have to do the same traditional cultural dance in Kenya and make lots of money. Similar stories are told to the girls being trained in modeling schools. Sometimes girls already working in Nepal dance bars are taken to Kenya. Once the girls reach Kenya, the dance bar owners keep their passports304.

Debt bondage - Work permits in Kenya are very expensive, requiring around USD 4000-5000 as processing fees. The girls/ women do not have this kind of money and therefore, the dance bar owners apply for their work permits305. They are then under debt bondage and not allowed to leave the work, and their passports are confiscated forcing them to perform under compulsion. In other instances, the girls are made to work during their tourist visa stay.

2.2.4 Conditions and risks facing trafficked persons

It is common knowledge in the bars in Kenya, Tanzania and others, that ‘dancing girl’ is a euphemism for ‘prostitution’, and customers bid for girls who are most popular dancers306.

Every three months, the girls are moved out of Kenya and are sent to Tanzania when their permit/ tourist visa expires. They work in Tanzania for some time, get their visas renewed from there and come back into Kenya and continue to work in the dance bars307. Each application of work-permit by the dance bar owner increases the debt bondage on the trafficked person.

303. Retrieved from: http://www.osnepalnews.com/28470. Accessed: 07 January 2019 304. Information received from the Embassy of Nepal in South Africa during field visit. 305. Information received from Nepal Police during field visit to Nepal. 306. Information received from the Embassy of Nepal in South Africa during field visit. 307. Thapa Seetashma (2013); and Bhattarai Devendra (2014)

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 63 64 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL MIGRANTS AND TRAFFICKING IN PERSONS MIGRANTS LEGAL FRAMEWORK ON THE SMUGGLING OF LEGAL

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 65 3. LEGAL FRAMEWORK ON SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS

3.1 International instruments

There are multiple international instruments impacting the free movement of people within their own countries, across borders, and their protection from abuse and violence. Some of these instruments refer particularly and others make oblique references to migrants of all types, trafficked victims, role of the States, and their protection.

Article 13, Universal Declaration of Human Rights, 1948 provides that - (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.

The United Nations Convention Against Transnational Organized Crime, 2000 (UNTOC) primarily deals with promotion of cooperation to prevent and combat transnational organized crime more effectively. The UNTOC does not contain a precise definition of ‘transnational organized crime’. Nor does it list the kinds of crimes that might constitute it, however, it defines an organized criminal group. The term TOC is cast broadly and it covers not only offences committed in more than one State, but also those that take place in one State but are planned or controlled in another. Also included are crimes in one State, committed by groups that operate in more than one State, and crimes committed in one State that has substantial effects in another State.

The implied definition ‘transnational organized crime’ then encompasses virtually all profit-motivated serious criminal activities with international implications. This broad definition takes account of the global complexity of the issue and allows cooperation on the widest possible range of common concerns. Smuggling of migrants and trafficking in persons across borders are both squarely covered by the Convention.

The UNTOC does contain a definition of ‘organized criminal group’ [Article 2(a)] as - • A structured group of three or more persons that was not randomly formed; • existing for a period of time; • acting in concert with the aim of committing at least one serious crime or offence (punishable by at least four years’ incarceration); • in order to obtain, directly or indirectly, a financial or other material benefit.

The UNTOC is further supplemented by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000 (UN Trafficking Protocol) and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000 (UN Smuggling Protocol).

The UN Smuggling Protocol obliges States parties through legislative measures to criminalize the smuggling of migrants (Article 6) and such other conduct related to enabling the smuggling of migrants, such as: • producing a fraudulent travel or identity document; • , providing or possessing such a document, when committed for the purpose of enabling the smuggling of migrants; • enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State; • attempting to commit the offence of migrant smuggling or related offences; • participating as an accomplice to a migrant smuggling offence or related offences; • organizing or directing migrant smuggling or related offences; • endangering the lives or safety of the migrants concerned; and • inhuman or degrading treatment, including for exploitation, of such migrants.

66 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL The UN Trafficking Protocol obliges States parties through legislative measures to criminalize the trafficking in persons (Article 5) for conduct and offences defined in Article 3 of the Protocol, which include participating as an accomplice and organizing or directing other persons to commit related offences.

Though a smuggled migrant is not a ‘victim’ of the crime of smuggling per se, unlike the description of a trafficked victim in the UN Trafficking Protocol (Article 3); smuggled migrants can and often do fall victim to other crimes in the course of being smuggled, including trafficking in persons308. It is important to note that while smuggled migrants are commonly understood to be willing objects of smuggling, such willingness is not an element of the international definition of smuggling of migrants.

Article 11 of both Protocols309 – mandate that State Parties can take measures for strengthening border controls to prevent and detect trafficking in persons and migrant smuggling.

Table 4: Country’s ratification status to relevant human trafficking and migrant smuggling instruments – Nepal, Bangladesh and India

International Nepal Bangladesh India Instruments

1951 Convention relating ------to the status of Refugees and 1967 Protocol 1974 International Convention for the Safety --- 06 Nov 1981 (A) 16 Jun 1976 (A) of Life at Sea (SOLAS) 1990 International Convention on the Protection of the Rights --- 24 Aug 2011 (R) --- of Migrants and their Families 2000 Convention against 12 Dec 2002 23 12 Dec 2002 05 May 2011 Transnational Organized 13 Jul 2011 (A) Dec 2011 (R) (R) Crime

2000 Protocol against the 12 Dec 2002 05 May 2011 Smuggling of Migrants ------(R) by Land, Sea and Air

2000 Protocol to Prevent, Suppress and Punish 12 Dec 2002 05 May 2011 Trafficking in Persons, ------(R) Especially Women and Children 2014 ILO Protocol to the Forced Labour ------Convention

308. Information received from Nepal Police and Embassy of Nepal in South Africa during field visit. 309. UNODC (2010) p. 10

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 67 2002 South Asian Association for Regional Cooperation (SAARC) Convention 05 Jan 2002 05 Jan 2002 05 Jan 2002 on Preventing and Combating Trafficking in Women and Children for Prostitution

2008 SAARC Convention on Mutual Assistance in 03 Aug 2008 03 Aug 2008 03 Aug 2008 Criminal Matters

(S) – Signed (R) – Ratified (A) – Accession

Table 5: Country’s signatory status to relevant international human trafficking and migrant instruments- Brazil, Colombia and South Africa

International Brazil Colombia South Africa Instruments

1951 Convention relating 15 Jul 1952 (S) 16 Nov 28 July 1951 (S)10 Oct 12 Jan 1996 (A) to the status of Refugees 1960 (R) 1961 (R) and 1967 Protocol

1974 International Convention for the Safety 23 May 1980 (A) 22 May 1980 (A) 31 Oct 1980 (A) of Life at Sea (SOLAS) 1990 International Convention on the Protection of the Rights --- 24 May 1995 (A) --- of Migrants and their Families

2000 Convention against 12 Dec 200029 Jan 2004 12 Dec 2000 04 Aug 2004 14 Dec 2000 20 Feb Transnational Organized (R) (R) 2004 (R) Crime

2000 Protocol against the 12 Dec 2000 29 Jan 2004 14 Dec 2000 20 Feb Smuggling of Migrants --- (R) 2004 (R) by Land, Sea and Air

2000 Protocol to Prevent, Suppress and Punish 12 Dec 2000 29 Jan 2004 12 Dec 2000 04 Aug 2004 14 Dec 2000 20 Feb Trafficking in Persons, (R) (R) 2004 (R) Especially Women and Children 2014 ILO Protocol --- to the Forced Labour ------Convention

68 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Smuggled Migrant or Trafficked Victim - The Commentary to the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking explains the human rights implications of misidentification for trafficked persons: -

‘If a trafficked person is not identified at all, or is incorrectly identified as criminal or as an irregular or smuggled migrant, then this will directly affect the ability of that person to access the rights to which she or he is entitled310.’ These rights may include shelter, access to health care and counseling, legal assistance, visas to remain in the destination country, access to reintegration programmes and compensation for their victimization.

Undoubtedly, the risks of incorrect identification thereby causing grave human rights violations are very high. Yet, categories intersect and overlap. Migrants may simultaneously fit into several ‘categories’ or fall into one at the point they reach a border but be bound for another category upon reaching their destination. Notably, a person may consider him or herself to be a smuggled migrant, but in actual fact be an unknowing victim of trafficking.

Brazil, Nepal and South Africa and all stakeholders that were interviewed during field visits, recognized the fact that irregular migrants are highly vulnerable to trafficking. This further raises the essential question of whether an irregular migrant intercepted at an international border is to be classified as an irregular migrant (or smuggled, where their migration has been facilitated), or as a victim of trafficking who has not yet been exploited. The case of the Nepali man intercepted at the border of South Africa is a classic case in point. The man had contract papers and a job offer and yet was entering South Africa on tourist visa. Someone had clearly facilitated his travel and the paperwork. He himself genuinely believed of the validity of the job contract, which was later, found to be fake. How should this man be categorized – as an irregular migrant, or as a smuggled migrant where someone had tried to facilitate his entry in the country, or as a potential trafficked victim of forced labour?

Challenges in successfully making this determination are compounded where trafficked victims proactively attempt to evade detection at borders, believing themselves at that stage to be irregular or smuggled migrants and unaware of the possibility that they are being trafficked. All law enforcement officials interviewed in Brazil, Nepal and South Africa recognized the enormous challenges of correct identification for ensuring better justice delivery.

3.1.1 The Global Compact for Safe, Orderly and Regular Migration

The Global Compact for Migration (GCM)311 is the first-ever UN global agreement on a common approach to international migration in all its dimensions. The global compact is non-legally binding.

The global compact comprises 23 objectives for better managing migration at local, national, regional and global levels. The compact: • aims to mitigate the adverse drivers and structural factors that hinder people from building and maintaining sustainable livelihoods in their countries of origin; • intends to reduce the risks and vulnerabilities migrants face at different stages of migration by respecting, protecting and fulfilling their human rights and providing them with care and assistance; • seeks to address the legitimate concerns of states and communities, while recognizing that societies are undergoing demographic, economic, social and environmental changes at different scales that may have implications for and result from migration; • strives to create conducive conditions that enable all migrants to enrich our societies through their human, economic and social capacities, and thus facilitate their contributions to sustainable development at the local, national, regional and global levels.

310. Article 11:1 of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air states: ‘Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect the smuggling of migrants.’ Similarly Article 11:1 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons states: ‘Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.’ 311. United Nations, Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking, November 2010, HR/ PUB/10/2, p. 73.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 69 164 of the 193 members of the UN adopted the Global Compact in Dec 2018. However, US, Australia and a group of Eastern European countries opted out of the Compact. The Minister for Labour, Employment and Social Security, Government of Nepal, stated at the Intergovernmental Conference, that the priorities for Nepal are the Global Compact’s objectives related to decent work, fair recruitment and skills recognition and addressing the vulnerabilities of migrant workers, including women. He reiterated the need for capacity building to implement the commitments at national, regional and global levels312.

3.2 Regional initiatives

Within South Asia, some initiatives have been undertaken to prevent and address human trafficking. The SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 is the first regional multilateral anti-trafficking treaty. The purpose of this treaty is “to promote cooperation amongst member states so that they may effectively deal with various aspects of prevention, interdiction and suppression of trafficking in women and children; the repatriation and rehabilitation of victims of trafficking and prevent the use of women and children in international prostitution networks, particularly where the countries of the SAARC region are the countries of origin, transit and destination”. This Convention is however, restricted to trafficking for commercial sexual exploitation.

The SAARC Convention on Mutual Assistance in Criminal Matters of 2008 can be used effectively to deal with cases of smuggling of migrants considering the cross-border movements of Nepalese migrants, using India as a transit; and between Nepal and Bangladesh, since reports have emerged of Bangladeshi migrants using Nepal as a transit for onward destinations of US, Europe and others.

3.3 National legislative, regulatory and policy frameworks

3.3.1 Analysis of the legal and policy framework in Nepal on Smuggling of Migrants and Trafficking in Persons

Nepal has signed and ratified the United Nations Convention on Transnational Organized Crime but not the supplementing Trafficking in Persons and Smuggling of Migrants Protocols.

3.3.1.1 Broad legal framework in Nepal on Smuggling of Migrants and Trafficking in Persons

The Constitution of Nepal, 2015 specifically refers to trafficking in persons and slavery asa fundamental right against exploitation. Every person is guaranteed the right against exploitation [Article 29 (1)]; and no one shall be subjected to trafficking nor shall one be held in slavery or servitude [Article 29 (3)].

The Directive Principles lays down policies that the State shall pursue relating to labour and employment313. It is incumbent on the State to regulate and manage the sector in order to make foreign employment free from exploitation, safe and systematic and to guarantee employment and rights of the labours [Article 51 (i) (5)].

The Human Trafficking and Transportation (Control) Act, 2007314 (hereinafter referred to as the Human Trafficking Act) superseded the earlier Human Trafficking Control Act of Nepal,1986. The Human Trafficking Act 2007 and Rules, 2008315 are the main legal instruments covering TIP in Nepal. The Human Trafficking Act has a rights-based and victim-centric approach; covers trafficking for

312. Retrieved from: https://refugeesmigrants.un.org/migration-compact. Accessed: 15 December 2018 313. Retrieved from: https://www.un.org/press/en/2018/dev3375.doc.htm. Accessed: 15 December 2018 314. Part 4, Directive Principles, Policies and Obligations of the State. 315.Retrieved from: http://www.lawcommission.gov.np/en/wp-content/uploads/2018/09/human-trafficking-and-transportation-control-rules-2065-2008. pdf. Accessed: 29 August 2018

70 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL prostitution, labour/ bonded exploitation, organ extraction(Section 4316); prohibits both internal and transnational TIP (Section 4); and to reflect the definitions of trafficking used in the UN Trafficking Protocol 2000, although this has not yet been ratified by Nepal. The Act has also included separate definition of exploitation and victim (Section 2). It provides measures for victim-witness protection (Section 26, 27),and compensation (Section 17) to the victims.

Though the Act provides for victim-witness protection, it hasn’t been fully implemented A petition was filed before the Supreme Court for the execution of this provision. The Court directed the relevant authorities to provide necessary logistical expenditure to the witnesses of TIP cases. The Government of Nepal has enacted a special Crime Victim Protection Act in 2018 to ensure right to justice to victims during criminal investigation, adjudication of cases, compensation and social rehabilitation. There is also a provision of ‘in- camera’ hearing upon the request of victim.

Regarding compensation (Section 17) to the victims, the Act has made a provision of providingcompensation by the accused. The Gender Equality Act of 2015 has brought in an amendmentin the Human Trafficking Act, such that the victim can receive compensation from the State if the offender is unable to pay compensation for any reason whatsoever.

However, despite the decision to give compensation by the courts, it is usually not received by the TIP victims. There are multiple reasons – victims may not want to go to the Decision Execution Office as they want to maintain their confidentiality, or they have already settled into a new life and do not want to revisit the case, or that the victim is ignorant of such a provision.

The Human Trafficking Act does not address issues of consent, the prevention of human trafficking, witness protection measures, the repatriation of victims, the immigration status of foreign victims in Nepal, international cooperation, and border measures317.

There is no specific law on smuggling of migrants in Nepaland none of the stakeholders stated this318 as a priority or the requirement for such a law. Also, there is no national strategy or action plan on migrant smuggling from Nepal.

However, various provisions from the anti-trafficking law and the new National Penal Code of 2017 can be utilized to deal with conduct and offences committed by smugglers related to irregular migration and SOM cases. The Country Criminal Procedure (Code) Act 2017 and the Country Penal (Code) Act 2017 - replacing the Muluki Ain 1964 (literally: Nation’s Code) came into force in October 2017, can be used in such cases.

Few examples of the offences and the corresponding provision are provided as hereunder (this list is only illustrative and not exhaustive) • Extra-territorial application of the Act: Any Nepali citizen who commits the offences against a Nepali citizen outside Nepal shall be punished under this Act as if he or she committed the offence in Nepal [Section 2(3)] o Desk review of literature, interviews with stakeholders and the case studies presented in the report undoubtedly reveal that from the recruitment stage to the final destination of smuggled migrants, it is always a local Nepalese/ Nepalese citizen living in another country, involved as an agent/ smuggler committing offences that would be covered under the Penal Code. • Criminal , Attempt, Abetment and Accomplice (Chapter 3) o Most of the offences during various stages of smuggling committed by different players at different stages would be covered under this chapter of the Penal Code. • Offences relating to cheating, criminal breach of trust and extortion (Chapter 21)

316. Retrieved from: http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/rules-and-regulations/human-trafficking-and- transportation-control-rules-2065-2008. Accessed: 29 August 2018 317. Section 4(1) defines trafficking as: - Selling or purchasing a person for any purpose - Pushing someone into prostitution, with or without any benefit. - Extracting human organs expect as determined by the law. - Engaging in prostitution as a client. 318. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Nepal

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 71 o Most of the offences during various stages of smuggling would be covered under this chapter of the Penal Code. • Offences relating to documents (Chapter 25) o of (Section 276); Prohibition of committing fraud (Section 279); Prohibition of using as genuine a fraudulent document (Section 280); Liable to punishment as accomplice (Section 281); and others.

The Foreign Employment Act, 2007 replaced the earlier Foreign Employment Act of 1985. The Act is supplemented by the Foreign Employment Rules, 2008 to govern all matters relating to migration for foreign employment from Nepal. The law and its Rules promote the security and welfare of foreign labour migrants with the provisions regarding the protection to their rights and for the regularization and monitoring of the businesses that facilitate the migration process. The provisions embodied in the Act and Rules can be broadly categorized into (i) provisions relating to establishment of the structure for management of foreign employment (ii) provisions relating to regulation of recruitment agencies (iii) provisions relating to non-discrimination and equality (iv) provisions relating to interests and rights of migrant workers (v) provisions relating to offences and punishments (vi) provisions relating to monitoring, investigation and prosecution.

One of the main issues with the Foreign Employment Act 2007 however, is its failure to properly account for undocumented workers319. The Preamble of the Act has focused on regularizing foreign employment, but it does not cover the protection of the rights and interest of all migrant workers, including undocumented workers. Although the definition does not explicitly exclude the undocumented workers, it does not include them specifically as in the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families320. Furthermore, the Act provides no specific provision for any kind of support in case of forced labour or labour exploitation. And the chapter on offence and punishment overlap with the offences and punishments outlined in the 2007 TIP Act321. Additionally, the Act does not provide the Department of Foreign Employment the ability to initiate an inquiry of its own accord, but only to make an inquiry in cases where a complaint has been received322.

As such the definition under exploitation does not cover labour exploitation under TIP Act323,many cases of trafficking for labour exploitation are wrongfully charged under the Foreign mployment Act, which has lesser punishment as compared to Human Trafficking Act. Thus, there is a need for harmonization of the Human Trafficking Act with the Foreign Employment Act and other laws324.

The Immigration Act, 1992; its Rules, 1994; and Procedures, 2008 regulate the movements of foreigners into, within and from Nepal, as well as the movements of Nepali nationals from and into Nepal. Under the Act, there is a prohibition on giving false or wrong particulars regarding name, age, nationality, etc., or using forged passport or visa, or instigate others to do so (Section 5).

The Mutual Legal Assistance Act, 2015 deals with the process and requirements of providing and obtaining legal assistance between Nepal and any other foreign country on certain legal matters. Section 5 of the Act outlines the scope of legal assistance that the Government of Nepal can seek from any foreign country or the foreign country can seek such assistance from the Government of Nepal. Pursuant to the Section 5 of the Act, the Nepal government and the foreign country can request to each other inter alia for the legal assistance to (a) examine evidences, (b) serve notice, (c) carry out investigation, (d) attach the title of any property, (e) presenting a person, (f) enforcement of judgment.

319. During during the field visit to Nepal. 320. The Asia Foundation (2014) Human Trafficking and Transportation (Control) Act, 2007 – Its Implementation. Forum for Women, Law and Development (FWLD), US AID, Kathmandu. p.15 Retrieved from: http://fwld.org/wp-content/uploads/2016/07/Human-Trafficking-and-Transportation-Control-Act- 2007-ITS-IMPLEMENTATION.pdf. Accessed: 25 October 2018 321. Section 2, Foreign Employment Act, 2007 322. Chapter 9, Foreign Employment Act, 2007 323. The Asia Foundation (2014) p. 16 324. Section 2(e) of Human Trafficking and Transportation (Control) Act, 2007

72 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Section 3 of the MULA imposes bilateral treaty and reciprocity requirement for enforcement of judgment and providing of legal assistance. Section 3 provides a general rule that legal assistance can be provided to a foreign country on the basis of a bilateral treaty or on the basis of reciprocity commitment from the foreign country. Section 3, however, requires bilateral treaty as a condition for enforcement of foreign judgment in Nepal. There is no such bilateral treaty or agreement between Nepal and the foreign countries under study for this Report.

The Extradition Act, 2014 can be utilized to get back absconded accused or offender (of smuggling of migrants and related offences) from foreign state to Nepal at the request of Nepal under the conditions and processes as mentioned within the Act.

Other laws that may be applicable in cases of TIP in Nepal are - • Labour Act, 1992 • The Human Body Organ Transplantation (Regulations and Prohibition) Act, 1998 • Children’s Act, 1992 • Child Labour (Prohibition and Regulation) Act, 2000 • Legal provision prohibiting child marriage - The 2002 Eleventh Amendment to the Muluki Ain sets the legal age of marriage as 20 years for both men and women.

3.3.1.2 Institutional and regulatory framework in Nepal on Smuggling of Migrants and Trafficking in Persons

The National Committee for Controlling Human Trafficking (NCCHT)

The Ministry of Women, Children, and Senior Citizen (MWCSS) through the National Committee for Controlling Human Trafficking, is the nodal agency to lead government anti-trafficking efforts. NCCHT is the coordinating body, which includes both government and non-government stakeholders, with the MWCSS as Secretariat. It has representatives from the Ministry of Home Affairs, the Ministry of Labour Employment and Social Security, the Ministry of Foreign Affairs, the Office of the Attorney General, the Nepal Police, activists, NGOs working on TIP325. The NCCHT is supplemented by 75 District Committees for Combating Human Trafficking (DCCHT), tasked with developing, implementing and monitoring TIP activities and collecting data to feed into the NCCHT. The Ministry (MWCSS) and Committee (NCCHT) are responsible for monitoring implementation of the National Action Plan on TIP and other related to women and children.

There is no focal Ministry, or coordinating body or data collection on smuggling of migrants.

Foreign Employment Promotion Board (FEPB)

The FEPB was established in 2008 under Section 38 of the Foreign Employment Act, 2007 and is chaired by the Minister of Labour, Employment and Social Security. The Ministry of abour and Employment was established as an independent entity in 2012 after it separated from the Ministry of Labour and Transport Management. One of objectives of the Ministry is to make foreign employment safe, dignified and well-managed.

The FEPB consists of representatives from different ministries, Nepal Rastra Bank, civil societies, and the private sector. Its major responsibilities are the promotional activities for foreign employment and ensuring the social protection and welfare of migrant workers. Among its main functions are - the conduct of pre-departure orientation, skills training, and arrange emergency contact detail for each worker that leads to their improved protection while working abroad; and formulate short and long term policies as required to make foreign employment safe, systematic and decent. In 2016-2017, the FEPB conducted interaction programs to raise awareness for safer migration in some districts; conducted awareness raising and promotional activities through production of radio program, street drama, and informative video; and published country-specific information in the form of brochures for

325. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Nepal

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 73 major destination countries326.

However, there is no mention of irregular or smuggled migrants seeking employment in foreign countries in the Foreign Employment Act, 2007 or the FEPB objectives.

The Ministry of Labour although seriously concerned about smuggling of migrants, believes that the subject is connected to Ministry of Foreign Affairs and the Ministry of Home Affairs. Although the Ministry of Labour should have some role, but its parameters are not clearly defined, so consultations are going on with the concerned Ministries327.

Department of Foreign Employment (DOFE)

DOFE is the key institution in facilitating and regulating foreign employment. Its objectives revolve around promoting safe and dignified foreign-based work opportunities, including regulating the operations of recruitment agencies and other business offering related services to ensure they conduct fair and decent practices. Its scope of work among other things is - coordinate and collaborate in matters related to foreign employment and international migration, and support in rescue of migrant workers from destination countries (as are relevant to smuggling of migrants).

To facilitate safe migration, the Ministry of Labour and Employment has established a ‘Labour Village’ in Kathmandu to provide smooth, quality, timely and transparent services to job seekers from a single stop location. This has been done in partnership with International Labour Organization (ILO), the European Union (EU) and the Non-Resident Nepali Association(NRNA)328. It hosts a Migrant Resource Centre that provides reliable information and legal counseling to migrant workers to improve their protection during the period of their employment329. However, potential smuggled migrants are highly unlikely to access the Labour Village or the Migrant Resource Centre once they have made up their mind to take services of third parties to reach their destination countries.

The Complaint Registration and Investigation Section of the DOFE receives complaints against either an institution (recruitment agency) or an individual (agent or other). It is highly unlikely that complaints against agencies or individual smugglers involved in facilitating migrant smuggling will show up with the DOFE, as migrants directly make a complaint to the police against the agent primarily for recovery of their fees already paid to the agent in cases of unsuccessful bids in reaching the destination countries.

Labour Attachés

The Government of Nepal has appointed labour attachés in eight countries: Bahrain, Kuwait, Malaysia, Oman, the Republic of Korea, Saudi Arabia, and the UAE – under the legal provisions of the Foreign Employment Act, 2007. The Act requires the appointment of a labour attaché in destination countries where 5,000 or more Nepali migrant workers are based(Section 68).

Brazil, Colombia and South Africa not being countries where the bulk of Nepalese go for work,does not have any special labour attachés appointed by the government.

Embassies of Nepal in the destination countries

Nepali embassies play a major role in providing services and supporting Nepali migrant workers in destination countries. Major activities of the Nepali embassies in relation to labour migrants include services and support in time of distress and grievances, repatriation of the dead bodies of deceased migrant workers, facilitating migrant workers to receive compensation from their employer, and rescuing migrant workers from vulnerable situations330.

326. Human Trafficking and Transportation (Control) Rules 2008. Rule 3. 327. DOFE (2017) p. 46 328. Information received during field visit to Nepal. 329. Retrieved from: https://www.ilo.org/kathmandu/info/public/pr/WCMS_412799/lang--en/index.htm. Accessed: 25 November 2018 330. DOFE (2017) p. 48

74 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Although there are no labour attachés in the countries under study for this report, the Embassy of Nepal in Pretoria, South Africa was fully clued into the situation of irregular/ smuggled migrants from Nepal reaching there for work. Migrants also approached them with their grievances when in distress as per information received from them331. The Embassy of Nepal in Brasilia Federal District, Brazil is far removed from São Paulo, where the maximum numbers of Nepalese migrants reach for transiting onwards to the US. Nepal does not currently have any diplomatic or consular representation in Colombia. There is a Nepal Consulate in Kenya (in Nairobi and in Mombasa).

Although it is highly improbable that smuggled migrants transiting from Brazil or Colombia or Ecaudor or any other country; and those trafficked to Kenya and Tanzania for exploitation in the dance bars - would approach the Embassy of Nepal for any help – either due to lack of information or fear – it would be imperative for the Embassies/ Consulate in these transit countries to have a more pro- active role and coordination with the foreign government counterparts.

3.3.1.3 Policies and plans

A. Trafficking in Persons

National Action Plan on Trafficking in Persons, especially Trafficking in Women and Children, 2012-2022

Nepal’s National Action Plan (NPA) on TIP is divided into five parts, namely Prevention, Protection, Prosecution, Capacity Building and Coordination, Cooperation and Collaboration. Some aspects of the Plan are332 –

The NPA states that the Government of Nepal will identify individuals who have been trafficked abroad and require rescue, as well as individuals who have been trafficked and have already returned to Nepal. It seeks to collect data on the number of survivors of trafficking who have special need and disabilities, as well as periodically collecting data on Nepali citizens who are victims of trafficking and are still in destination countries. It plans to rescue children who are in exploitative conditions abroad, and to do this through diplomatic means. The NPA also calls for the establishment and strengthening of mechanisms to rescue victims of trafficking by developing bilateral Memorandum of Understanding (MOUs), allocate a budget to diplomatic missions abroad on rescue. The NPA calls also for the strengthening of coordination between Nepali diplomatic missions abroad, the Nepali diaspora, and the labour attaché to facilitate the rescue of Nepali citizens.

The effectiveness of the National Action Plan - Although the National Plan of Action contains a wide range of activities, it does so without clear timelines and budgetary allocations333.

On paper, the NPA appears to work and has made a contribution to the country but in practice, at the village level and district, it is not effective. It does not seem to have an impact at operational level. It lacks the prioritization, clear timelines and budgetary commitment to be an effective operational planning instrument334.

An example of relevance to this report w.r.t. the trafficking of girls/ women to the dance bars in Kenya merits quoting. In 2008, the Supreme Court of Nepal promulgated a directive335 in relation to giving protection to women and girls working in the entertainment sector against sexual exploitation at work place and issued an order to the Government of Nepal to formulate a law to address these problems and challenges. The directive established a Monitoring Action Committee, comprising the Chief District Officer, police and Women and Child officers (at the district level). While NGOs are rescuing girls from these establishments along with the police and rehabilitating them, the government

331. DOFE (2017) p. 50 332. During field visit to South Africa. 333. The Asia Foundation (2014) 334. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Nepal 335. Ibid.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 75 falls short on monitoring entertainment establishments336.

Nepal does not have any national plan of action or national strategy on smuggling of migrants. During field visit interviews, when questioned about NPA for human smuggling, stakeholders frequently referred to the NPA for human trafficking, indicating a general confusion/ambiguity in the understanding of human trafficking and human smuggling.

The National Plan of Action for Children and the National Plan of Action on Child Labour

The Ministry of Women, Children, and Senior Citizens, and the Central Child Welfare Board are implementing these two plans. Although relevant to child trafficking and child labour, these do not have any bearing on the smuggling of migrants from Nepal and hence, are not being analyzed.

The National Plan of Action for the implementation of CEDAW, 2011; the National Action Plan for Gender Equality and Empowerment of Women, 2004; and the National Plan of Action for Combating Gender-based Violence, 2010

These Plans inter alia aim to: increase access to justice, establish and strengthen community based and rural health services for the security of victims; strengthen the health sector to effectively address gender-based violence; increase awareness and promote zero tolerance; provide social and economic support to girls and women at risk; and ensure coordination, communication and programme monitoring. The Ministry of Women, Children, and Senior Citizens is in charge of the implementation of this policy at the district and local level, but resources are low337.

B. Labour and Employment

The Foreign Employment Policy, 2012

It is the first policy of the Government of Nepal to address the socio-economic dimension of the increasing trends in foreign labour employment. The policy recognizes irregularities in the managing of the migration process for employment and lack of good governance as major problems.It also recognizes that poorly informed and weakly prepared migrant workers are at greater risk of exploitation and vulnerable situations. It acknowledges the increasing trend among female labour migrants going abroad for employment and recognizes the problems that they experience during the migration process.

The Policy sets a goal to ensure safe, organized, respectable and reliable foreign employment; to contribute to poverty reduction along with sustainable economic and social development through economic and non-economic benefits of foreign employment; to provide knowledge and skills to meet the demand of the international labour market and to develop a skilled, capable and competitive labour force so as to make the entry of Nepali workers into the international market safe, organized and compliant with international laws, obligations and regulations.

3.3.2 Legal and policy framework in Brazil

Brazil has signed and ratified the United Nations Convention on Transnational Organized Crime and its supplementing Trafficking in Persons and Smuggling of Migrants Protocols.

336. Sharmila Parajuli v. Government of Nepal, Writ no. 3434 of 2060, N.K.P. 2062, Vol. 10, page 1312, Decision no: 7449 337. Aronowitz Alexis, Dahal Pritha (2014) Report to the Government of Nepal on the Situation of Human Trafficking: An Exploratory Study. Research Gate. Retrieved from: https://www.researchgate.net/publication/271507264_Report_to_the_Government_of_Nepal_on_the_Situation_of_Human_Trafficking_ An_Exploratory_Study. Accessed: 25 November 2018

76 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 3.3.2.1 Broad legal framework in Brazil on Smuggling of Migrants and Trafficking in Persons

The Federal Constitution of Brazil of 1988 (Constituição Federal) contains no provisions on trafficking in persons. It makes a reference to slave labour in Article 243, as amended by Amendment No. 81 in 2014. This Article establishes that rural and urban properties in any region of the country where illegal crops of psychotropic plants or the exploitation of slave labour are found must be expropriated and devoted to agrarian reform and public housing programs, without compensation to the owner and without prejudice to other penalties provided by law338.

The Brazilian Constitution however, provides several principles for the protection of human rights, which would include victims of human trafficking and smuggled migrants339. The Constitution establishes human dignity as one of the fundamental principles of the country [Art. 1(III)]. All Brazilians and resident foreigners are equal under the law, and guarantees their inviolable right to life, liberty, equality, security, and property (Art. 5). The Constitution further protects against torture and inhuman or degrading treatment [(Art. 5(III)], providing that the law must severely punish those who abuse, perpetrate violence against, and sexually exploit children and adolescents [(Art. 227(§4)]. The Constitution thus makes clear that Brazilians and foreigners residing in the country should be protected against the degradations of human trafficking and smuggling of migrants.

The Law on Trafficking in Persons - Law nº 13.344, updated the earlier legislation on TIP. Before this law, the Criminal Code criminalized human trafficking restricting it to sexual exploitation, both domestic and international. The new legal framework is in line with the UN Trafficking Protocol. It broadens the concept by recognizing all types of trafficking, includes provisions for the prevention of TIP, protection of victims, and the suppression of the crime. It has a comprehensive victim assistance policy, for nationals and foreigners alike, including legal, social, employment, and health care rights. It also provides for organizing joint investigation teams and promoting cooperation between entities belonging to the justice and security system, national and foreign, as well as special mechanisms to freeze the assets of those accused of trafficking in persons. Smuggled migrants, who also get trafficked for any kind of exploitation, can get covered under the protective provisions of this law.

Many other federal laws can be used to combat human trafficking, including thePenal Code (Código Penal, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940), and the Child and Adolescent Statute (Estatuto da Criança e do Adolescente, Lei No. 8.069 de 13 de Julho de 1990)340. The Penal Code has many Articles with direct reference to various activities pertaining to trafficking in persons.

On March 12, 2014, Brazil enacted Decree No. 5,015, which promulgated the UNTOC; Decree No. 5,016, which promulgated the UN Smuggling Protocol; and Decree No. 5,017, which promulgated the UN Trafficking Protocol341.

The New Migration Law (Law 13.445 issued in May of 2017) has formally revoked the Foreigner Statute Law (Law 6.815/1980) (Estatuto do Estrangeiro), defining the rights and duties of Brazilian migrants and the legal situation of foreign individuals in Brazil342. The new immigration law went into effect on November 21, 2017. The main purpose of the new legislation is to ensure equal rights and opportunities to foreigners as if they were Brazilian citizens, as well as simplify the procedures for entrance and residence in Brazil. With respect to the latter, the Law has created new types and characteristics for allowable visas, extended the coverage conditions for the temporary visa, and introduced a new authorization for residence. Article 232-A make explicit reference to illegal migration:

338. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Nepal 339. Retrieved from: https://accountabilityhub.org/provision/brazilian-constitution-article-243/. Accessed: 02 December 2018 340. The Library of Congress. Retrieved from: https://www.loc.gov/law/help/human-trafficking/brazil.php. Accessed: 02 December 2018 341. Ibid. 342. Information received from GLO.ACT, Project Officer, Brazil.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 77 “Promotion of illegal migration Art. 232-A. To promote, by any means, with the purpose of obtaining an economic advantage, the illegal entry of foreigners in national territory or of Brazilian in a foreign country: Penalty - imprisonment, from two (2) to five (5) years, and fine.

Paragraph 1. In the same penalty, incurs anyone who promotes, by any means, for the purpose of obtaining an economic advantage, the departure/exit of a foreigner from national territory to enter illegally into a foreign country. Paragraph 2. The penalty is increased from 1/6 (one sixth) to 1/3 (one third) if: I - the crime is committed with violence; or II - the victim is subjected to an inhuman or degrading condition. Paragraph 3. The penalty foreseen for the crime shall be applied without prejudice to those corresponding to the related offenses.”

3.3.2.2 Institutional and regulatory framework in Brazil on Smuggling of Migrants and Trafficking in Persons

The anti-TIP Coordination of the National Secretariat of Justice.

The National Committee to Fight against Trafficking in Persons (Comité Nacional de Enfrentamento ao Tráfico de Pessoas – CONATRAP) involves governmental and civil society actors. State Anti-TIP Committees develop their own anti-TIP policies, which reflects their commitment to combating TIP and sets its own referral mechanisms depending on local infrastructure.

The Tripartite Coordinating Body, which includes the National Secretariat of Justice, the Ministry of Human Rights, and the Secretariat for Policies for Women.

An inter-Ministerial group – 18 ministries, chaired by Ministry of Justice, discusses and coordinates the implementation of the 2nd National Action Plan.

The Department of Migration at the Ministry of Justice, as well as the National Council of Immigration (Conselho Nacional de Imigração - CNIg), work with vulnerable irregular immigrants. The CNIg, based within the Ministry of Justice, usually decides on work permits and reviews resolutions regulating certain aspects of migration. CNIg though not directly responsible for protection and assistance, it is an instance of articulation of the Brazilian Migration Policy, in particular the Labor Migration Policy, through permanent dialogue with the Brazilian Society.

CONARE, the National Committee on Refugees, is responsible for reviewing and deciding on all requests for refugee status in first instance. It is also tasked with coordinating all necessary action for the protection, assistance and legal support for refugees. Led by the Ministry of Justice, other members are the Ministries of Foreign Affairs, Health, Education and Labour, the Federal Police and NGOs.

The Public Defenders Office (DPU) receives complaints from migrants and provides legal counseling towards living and working in Brazil.

3.3.2.3 Policies and plans

There is no National Plan of action or national strategy on smuggling of migrants in Brazil343. Brazil has however, signed the UN Smuggling Protocol and sanctions it in Decreoo n˚ 7.953 of 12 March 2013.

343. Price Water Coopers (2017) Brazil – New Migration Law to affect visas, residence rules. Retrieved from: https://www.pwc.com/gx/en/services/ people-organisation/global-employee-mobility/global-mobility-insights/-brazil---new-migration-law-to-affect-visas--tax-residence-rules.html. Accessed: 25 October 2018

78 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Ordinance MJ 2167, 7 December 2006 - Established the application of the FIRST Action Plan to Counter Trafficking in Persons (I PNETP), in between Member States of MERCOSUR and Associated States, was in force between 2008 and 2010. The SECOND National Action Plan (II PNETP) was from 2013 to 2016, while the THIRD National Action Plan (III PNETP) will run from 2018 until 2022.

Decree 5948, 26 October 2006 - approved the National Policy to Counter Trafficking in Persons and establishes the Inter-ministerial Working Group in order to develop a National Plan to Counter Trafficking in Persons.

Decree 6347, 8 January 2008 - approved the National Plan to Counter Trafficking in Persons and establishes the Advisory Evaluation and Dissemination Group.

Ordinance SNJ 031, 20 August 2009 - defined the powers of the Centre to Counter Trafficking in Persons and of the Advanced Outposts.

3.3.3 Legal and policy framework in Colombia

Colombia has signed and ratified the UNTOC and the UN Trafficking Protocol, but not theUN Smuggling Protocol.

3.3.3.1 Broad legal framework in Colombia on Smuggling of Migrants and Trafficking in Persons

The Constitution of Colombia of 1991 prohibits through Article 17 - slavery, servitude, and the slave trade in all forms. Article 13 of the Constitution, holds that ‘all people are born free and equal before the law and establishes a State obligation to protect the weak and punish any abuse or mistreatment perpetrated against them’.

The Human Trafficking Act 985/2005 is a specific law criminalizing trafficking in persons and outlining the rights of victims to services. Law 985 refers to four acts, namely: capturing, transferring, hosting and receiving of people. It also refers the following forms of exploitation: prostitution and other forms of sexual exploitation and sex tourism; forced labour or services; slavery or slavery like practices; servitude; the exploitation of forced begging; servile marriages; removal of organs; and other forms of exploitation. The law does not include a definition of means. The Act makes a victim’s consent to his or her movement/ exploitation irrelevant in proving whether trafficking has occurred344.

The Criminal Code, Article 188 defines the smuggling of migrants and trafficking in persons345 a s follows:

Article 188. Smuggling of migrants:

[...] “Anyone who promotes, instigates, forces, facilitates, finances, collaborates or in any other way participates in the entry or exit of persons to or from the country without fulfilling the legal requirements, with the of gaining profits or any other form of benefit, whether personal or for another person, shall be liable to a term of imprisonment of ninety-six (96) to one hundred and forty-four (144) months and a fine of sixty-six point sixty-six (66.66) to one hundred and fifty (150) legal monthly minimum wages in effect at the time of the conviction”.

3.3.3.2 Institutional and regulatory framework in Colombia on Smuggling of Migrants and Trafficking in Persons

The Inter-institutional Committee for the Fight against TIP acts as the national coordination mechanism. The Ministry of Interior leads the Committee and is responsible for monitoring

344. Ibid. 345. Wilcox Joseph Daniel (2015) Barriers to Combating Human Trafficking in Colombia. Naval Post Graduate School. Monterey, California. Retrieved from: https://apps.dtic.mil/dtic/tr/fulltext/u2/a620887.pdf. Accessed: 19 October 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 79 implementation of the National Strategy346.

The Ministry of Foreign Affairs is responsible for formulating and implementing migration policy as well as for issuing permits to enter the country based on the respective visas. The Special Colombia Migration Administrative Unit is responsible for overseeing and controlling migration347. Decree 1692 of 2016 created the Inter-Sectoral Commission against the trafficking of migrants in Colombia to generate guidelines on this issue in the country. The Ministry of Foreign Affairs chairs the Commission.

3.3.3.3 Policies and plans

The National Strategy against Trafficking in Persons 2013-2018 was adopted by Decree 1036 in June 2016. In addition to the National Strategy against TIP there are several TIP plans and policies at departmental and municipal level.

Currently, there is no National Plan of Action on Smuggling of Migrants in Colombia. A national strategy is under discussion to be adopted in 2019348.

3.3.4 Legal and policy framework in South Africa

South Africa has signed and ratified the UNTOC and both the UN Trafficking Protocol, and the UN Smuggling Protocol.

3.3.4.1 Broad legal framework in South Africa on Smuggling of Migrants and Trafficking in Persons

The Constitution of South Africa has some relevant provisions, which may generally apply to trafficking in persons and smuggling of migrants. These include Sections 7, 10, 12, 44(2) (a), 146(2) and / or Chapter 11, which speaks to the issue of security services and territorial integrity.

The Prevention and Combating of Trafficking in Persons Act no. 7/2013 is the special law on TIP in South Africa. The Act is believed to provide adequate provisions for countering a ff i c k i n g including commensurate financial and custodial sanctions; whilst reporting weaknesses with respect to provisions on victim identification, support and protection349.

Other laws useful for combating trafficking would be the Basic Conditions of Employment Act, 1997 having provisions on the right to fair labour practices by establishing and making provision for the regulation of basic conditions of employment and other provisions. The Child Care Act, 2005 contains special provisions on trafficking in children.

The Immigration Act No. 13 of 2002 as amended in 2004 and complemented by the Immigration Regulations of June 2005, regulates conditions under which foreign nationals could attain admission, residence and citizenship status; as well as makes provisions for criminalizing individual migrants and foresees detention and repatriation as a priority. According to Section 49 of the Act, it is an offence to enter or remain in the country without a permit. Anyone who fails to produce valid documents entitling them to be in the country can be arrested without a warrant for purposes of identification under the provisions of Section 41. Section 34 of the Act provides for the arrest, detention and deportation of ‘illegal foreigners’. An illegal foreigner is defined under Section 1 as “a foreigner who is in the Republic in contravention of this Act.”

The Act does not focus on migrant smuggling as a large-scale organized crime done by organized networks.

346. Retrieved from: http://www.un.org/en/ga/sixth/66/ScopeAppUniJuri_StatesComments/Colombiapercent20(Spercent20topercent20E).pdf Accessed: 19 October 2018 347. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Colombia 348. International Organization for Migration (2018 - II) Migration Governance Snapshot: Republic of Colombia. Retrieved from: https:// migrationdataportal.org/sites/default/files/2018-11/Migrationpercent20Governancepercent20Snapshot-percent20Republicpercent20ofpercent20Colombia. pdf. Accessed: 19 November 2018 349. Information received from GLO.ACT Project Officer, Colombia on 14 January 2019.

80 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL There is currently no legal framework to identify and support smuggled and vulnerable migrants. The Department of Home Affairs was discussing the SOM Bill since 2016, but it is now being proposed to include SOM as a part of TIP law350.

The Refugees Act, 1998 specifies admission requirements and other matters that must be complied with by foreign nationals who wish to apply for refugee protection in South Africa. A Border Management Authority Bill is currently under discussion in South Africa. The BMA Bill essentially aims to integrate border management, which is currently exercised by various Departments, under a single authority. The proposed Bill seeks to facilitate legitimate trade and travel functions, while simultaneously addressing security risks including TIP and SOM351.

3.3.4.2 Institutional and regulatory framework in South Africa on Smuggling of Migrants and Trafficking in Persons

The National Inter-Sectoral Committee for Trafficking in Persons (NICTIP) is supported by the National Joint Task Team (NJTT) and the nine Provincial Task Teams on Trafficking in Persons (PTT)352.

There is no coordinating body for smuggling of migrants, which is handled by the Department of Home Affairs.

3.3.4.3 Policies and plans

The Trafficking in Persons National Policy Framework (NPF) and Plan of Action, was reviewed and finalized at a workshop conducted by GLO.ACT Project, UNODC in collaboration with the Department of Justice and Constitutional Development in October 2018. The NPF is currently with the government for approval353.

There is currently no dedicated policy framework or action plan on migrant smuggling in South Africa. Migrant smuggling is increasingly perceived as an issue that warrants attention in the country, although there is limited knowledge about policy approaches in this field354.

350. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT South Africa 351. Information received during field visit to South Africa. 352. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT South Africa; and information received during field visit to South Africa. 353. Ibid. 354. Retrieved from: http://www.unodc.org/unodc/en/human-trafficking/glo-act/glo-act-supports-workshop-on-the-validation-of-the-national-policy- framework-npf-against-trafficking-in-persons.html Accessed: 11 November 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 81 82 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL AND TRAFFICKING IN PERSONS RESPONSES TO THE SMUGGLING OF MIGRANTS RESPONSES TO

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 83 4. RESPONSES TO SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS

In all the countries under study for this report - Nepal, Brazil, Colombia and South Africa there is little coordinated response to smuggling of migrants and its facilitation by organized criminal networks. There is no national action plan or strategy outlining any comprehensive approach to deal with this issue.

Governments in these countries have responded to trafficking in persons through comprehensive national action plans and initiatives, although their actual implementation has been challenging and uneven.

Desk review and field interviews have revealed the following responses to smuggling of migrants in Nepal, Brazil, Colombia and South Africa and trafficking in persons in Nepal and South Africa.

4.1 Criminal justice responses

There is consensus among key stakeholders regarding lack of proper understanding of smuggling of migrants. Irregular migration, human smuggling and human trafficking are often extrapolated, thus confusing issues. Whilst this is true of government and non-government stakeholders, it has graver consequences to criminal justice responses. Law enforcement officials in Nepal, Brazil, Colombia and South Africa narrated the uneven knowledge among police and other criminal justice actors and its consequent impact on the justice delivery to smuggled migrants.

In the absence of a specific law on smuggled migrants, smugglers are often charged under the human trafficking laws and relevant provisions of the penal codes of the respective countries.

Nepal – The Ministry of Home Affairs governs Nepal Police, which is the principal body in charge of investigating TIP and SOM. While there is no specialized trafficking police unit, the Crime Investigation Department (CID) of the Nepal Police deals with TIP cases. The CID administers the District Women and Children Service Centres, which play an important role in investigating TIP cases at local level. There is also no specialized investigation unit for smuggling of migrants.

Since 2016, Nepal Police runs a 24 hours national and international helpline, toll free no. 1177, for rescuing trafficking victims and taking action against offenders. 530 complaints have been received on this number and more than 1200 people have been rescued till date355. Those rescued involved mostly male victims who were cheated and did not get the promised work or salary; bad and difficult jobs; bad work conditions; breach of contract, etc. In the majority of cases where the victim had found employment through manpower agencies, the police mediated between the victim and the manpower agency for getting compensation, as per the victim’s own requests. As per information received from the police, trafficking victims of forced labour are rarely interested in filing cases against the accused, but want compensation for their financial and other losses. In cases of Nepalese in employment abroad, the police may also involve the Foreign Employment Promotion Board and the consular embassies to repatriate the victims to Nepal.

Law enforcement officials pointed out specific challenges in investigating SOM and TIP cases. Collation of information on the actual number of smuggled or irregular migrants is a constant challenge. Information and data on irregular and smuggled migrants is difficult to collect. Since India and Nepal have an open border policy, they are off the radar of the border/ immigration agencies.

In the absence of a database, the scale and magnitude of the problem remains uncertain. This has naturally led to non-prioritization of the issue, both at the political and at the criminal justice level.

355. Information received during field visit to South Africa.

84 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL The police pointed out the parallel systems of investigation in trafficking cases involving different agencies: the police under the Human Trafficking Act; the labour authorities under the Foreign Employment Act; and, sometimes, educational authorities where educational consultancy agencies are involved in trafficking or smuggling of migrants.

‘Consent’ of the girls/ women to prostitution, such as in the trafficking to dance bars in Kenya, was consistently mentioned, thereby preventing the police from filing trafficking cases against the accused. It thus seems, that there is uneven knowledge and understanding of the concept of ‘consent’ – of the psycho-social impact on the victims, of the ‘Stockholm syndrome356’ and ‘capture/trauma bonding’ (with their perpetrators as a result of power imbalances and the intermittent good-bad treatment), and other related issues with respect to the victim’s psychology, especially in sex-trafficking cases.

Mention was made of the peculiar difficulties in cases of human smuggling, especially that there are no complainants, there being ‘consent’ of migrants. The police consider smuggling of migrants as a ‘victimless’ crime. If the migrant successfully reaches the destination country, there is no question of any complaint. Only if the irregular/ smuggled migrant has faced difficulties and has to return, then they approach the police. Even here the complainant is not interested in investigation and prosecution of the smugglers, they still want their money back, and therefore ask for police intervention.

The police strongly believed that the recruiters/ smugglers/ complicit officials are initially all locals from Nepal, and yet they escape any consequences due to lack of complaints from migrants. In the absence of pro-active intelligence gathering and pro-active investigations, suo motu357 actions against wrongdoers cannot be taken. Under the present legal system, any person who purchases false documents will be charged under the Passports Act of 1967 for fraudulent document/ forgery. This may well include the irregular/ potential smuggled migrant, as the law does not create any exception in this regard.

For both, TIP and SOM cases, the other challenges included: investigations being very complex; very few clues/ trails left behind by traffickers or smugglers in terms of recruitment, exchange of money (often done in cash or through Hawala) or financial trail; the interface between the victim/ migrant and the accused, and others. There are serious limitations in law enforcement capacities for financial investigations, which are always required in TIP and SOM cases. The interactions between the victims/ migrants from the stage of recruitment itself keep the traffickers/smugglers hidden, such as, Viber/ WhatsApp chats or SMSs (“come to India”), or random advertisements in newspapers offering jobs in Cambodia and Thailand. The investigations are hampered due to the absence of any crime scene as such and also due to no direct contact between victims and accused during the initial stages in Nepal.

Brazil – Almost all stakeholders and government authorities admitted a lack of strong understanding of differences between TIP and SOM, which are often thought of as the same and overlapping with each other. Even with respect to prosecutions of TIP cases, these are few in number, due to the confusion over sufficiency of evidence to prosecute a TIP matter. Although training programmes are conducted on TIP, there is still a critical requirement for more legal education for bearers on all aspects of TIP and SOM. Brazil does not have a policy of strict prosecution and they believe that in the traditional approach the smaller criminals are prosecuted whilst the big perpetrators are let off. There is more focus on rehabilitation of victims rather than prosecution of traffickers.

The Federal Police, apart from combating crime, also performs work related to migration, such as receiving applications for migration, asylum or refugee status. After filing their asylum applications at the airport, the documents are sent to Brasilia Federal District, to CONARE, the National Committee on Refugees, for further processes, and in the meanwhile, the migrants are sent from the airport into the city. For the Federal Police, it is difficult to trace the migrants once they leave the airport. Thus,

356. Information received during field visit to Nepal. 357. A condition that causes them to develop a psychological alliance with their perpetrators/ the traffickers, as a survival strategy during exploitation.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 85 the authorities are hampered in conducting further interviews to find out if there were possible cases of TIP or SOM among them. The Police could not confirm if there were cases of human smuggling becoming human trafficking along the way.

The Police is not involved in cases where irregular migrants are found working “illegally”, as the migrant will never be prosecuted. The Ministry of Labour and Employment, through its subsidiary offices, would handle such matters administratively for assisting the migrant.

As per information received from the Federal Police, there are currently some ongoing investigations in TIP and SOM cases Investigation normally starts when they get a fake document at the airport or land border, or when they get a passport electronically scanned. If the document is suspected to be fake, the Federal Police is contacted by Immigration Police. However, as soon as the person claims asylum, then no further action can be taken under the Brazilian law, because the passport was issued/ procured from another country, and therefore, no investigation can proceed. At times, it is also difficult to prove if a document is genuine or not.

The new migration law of 2017 is being used to file charges against smugglers, which could not be done earlier because under the old law it was not a crime if someone facilitated entry of another person into Brazil. Conviction has not yet been achieved because cases are still being investigated under the new law.

Among the specific challenges mentioned by the police are: limited human resources to man the huge border; not too much expertise in investigation of SOM and TIP cases; and investigations involving transnational crimes in multiple jurisdictions.

Colombia – From the profile of migrant smugglers mentioned earlier in Chapter 2, there appears to be a general feeling of impunity for the criminal gangs and the de facto and perceived control of armed and criminal groups over certain territories and their involvement in SOM along with drug and arms trafficking.

In addition, there are other barriers to effective investigation and prosecution of SOM cases358.As in all regions of the world, corruption in specific cases is a challenge within the criminal justice sector. There is lack of systematic training or availability of specialized courses on SOM for relevant responders, especially at the border regions. Colombia being primarily a transit country for smuggled migrants, the criminal justice sector seems to struggle with justifying the use of resources on people who do not want to stay in the country vis-à-vis the needs of the local population.

Since 2012, the Special Colombia Migration Administrative Unit has been optimizing control and verification processes as well as immigration formalities by incorporating concepts of innovation, transparency and efficiency, including early warning systems, biometric identification and online formalities, among other things. Similarly, the unit discharges Judicial Police functions in coordination with the Office of the Public Prosecutor, with respect to the fight against migrant smuggling, human trafficking and the forgery of documents359.

South Africa – Almost all stakeholders unanimously agreed that lack of a trafficking in persons (and human smuggling) national and provincial database hampers the exact knowledge building on the magnitude and scale of the problem. A big concern is the discrepancy in the number of trafficked victims in shelter homes and numbers of TIP crimes registered with the police. Although, the Prevention and Combating of Trafficking in Persons Act No. 7/2013 has a provision of creating a unified database, South Africa does not yet have a national database of TIP cases.

Although the police confirmed cases of migrants being smuggled from Asia, namely, India, Bangladesh and Pakistan, there were no filed complaints against smugglers, and therefore no specific information

358. Suo motu is a Latin term meaning “on its own motion”. It is used in situations where a government or court official acts of its own initiative. Retrieved from: https://definitions.uslegal.com/s/suo-moto/. Accessed: 12 December 2018 359. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Colombia

86 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL was provided on investigations. It emerged from interviews with various stakeholders that the system is currently not geared towards addressing irregular migration effectively, and the capacity to counter migrant smuggling is not yet in place.

South Africa is a destination for neighbouring countries as well as from South Asian for labour, which may often be trafficked. However, the Labour Inspectors are not equipped to identify TIP victims for labour exploitations during their routine inspections. The police does get called or involved in these cases, leading to their classification as labour law violation cases, and not criminalTIP cases.

There is, however, not enough capacity building at ground level. Officials also pointed to the need for more training at the institutional level.

4.1.1 Corruption/ complicity of officials

A 2010 World Bank study conservatively estimated that the total cost of corruption in the foreign- employment industry in Nepal is over NR 17.2 billion per year (USD 194.7 million), with NR 7.5 billion (USD 84.9 million) from official channels and NR 9.7 billion (USD 109.8 million) from informal/ unofficial channels. The available data reveals that informal channels of migration are more vulnerable to corruption than formal, official ones360. Corruption in foreign employment can range from purely private-sector-driven criminal activities (human trafficking and fraud), to public-private collusion to speed up the migration/recruitment process (forged work permits and bribery), to purely public- sector-driven activities (nepotism and favoritism in the regulation of foreign employment).

Information received from Nepal361 suggests that it takes a Nepalese passport holder about INR 32,000 (approximately USD 450) to get the desired travel clearances from the New Delhi special immigration desk, suggesting complicity of the immigration staff362. Other reports point to officials working at the Tribhuvan International Airport in Nepal, are sometimes bribed by would-be smuggled migrants in order to obtain the required emigration documentation363.

In all the GLO.ACT assessment reports of 2016 for Nepal, Brazil, Colombia and South Africa, corruption and complicity of officials is acknowledged to be a challenge in dealing with SOM and TIP, thereby significantly affecting criminal justice responses in these countries.

Much literature364 exists on corruption in the transit countries of Latin America: Ecuador, Brazil, Colombia, Panama, Guatemala, and Mexico. In multiple instances, Mexican immigration officials and security forces have been associated to the trafficking and kidnapping of migrants, who are held until relatives pay a ransom. Other victims are forced to work for criminal bands. Guatemala’s high level of corruption makes it an attractive pipeline for human smugglers.

The South Africa police narrated an incident365 of a girl’s visit to the government office for renewal of her identity document. She was told that she was already “married” to a Pakistani, who in turn would have applied for permanent residency in South Africa on that basis. The irony of the situation was that the girl had to now prove that she was not “married” to the Pakistani man.

4.2 International co-operation

As a source country for SOM and TIP, Nepal is heavily reliant on cooperation from destination countries to investigate and prosecute smuggling and TIP networks. Legal and procedural cooperation mechanisms appear limited however, and to date there have been no joint investigations into international trafficking or smuggling cases. Nepal does not have an institutionalized mechanism for

360. IOM (2018 - II) 361. Verité (2012) p. 26 362. Information received during field visit to Nepal 363. Ibid. 364. UNODC (2018) p. 56 365. Bensman Todd (2016)

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 87 mutual legal assistance in criminal matters or bilateral law enforcement cooperation. Formal extradition mechanisms are rarely used to extradite alleged or convicted traffickers. There are also limitations in labour agreements with destination countries for Nepali migrant workers migrating regularly or irregularly, creating opportunities for labour brokers and employers to engage in exploitative labour practices366.

With respect to issues regarding the open border policy between Nepal and India, it is ‘an opportunity but also a challenge’367. Due to stringent documentation checks at Tribhuvan International Airport at Kathmandu in Nepal, especially female migrants for onward journeys use the international airport in Delhi. The special immigration desk at the Delhi airport seems to have had little impact in curbing irregular migration of Nepalese nationals. All stakeholders in Nepal asserted the need for more effective border regulation with India, whilst ensuring minimal obstructions in movements of people on both sides.

Lack of formal international cooperation mechanisms between the Government of Nepal and the Governments of Brazil, Colombia and South Africa (the transit countries under study in this report) will also hamper prosecutions and protection of smuggled migrants. In the absence of adequate information being made available in Nepal and in the transit/ destination countries, smuggled migrants have no knowledge on where, how, and whom to contact for seeking help.

Considering the fairly large number of Nepalese, Bangladeshis and Indian migrants reaching Brazil and Colombia for the past couple of years, there seems to be no cooperation mechanisms or even dialogue between the concerned government stakeholders and the embassies/ consulates of Nepal, Bangladesh and India in these countries. Currently, there is no Nepali Embassy in all the countries of Latin America as the representation is in Washington, D.C.

Cooperation and coordination of government stakeholders from all source, transit and destination countries is the first step towards understanding the reason for arrival of smuggled migrants, the exploitation of loopholes in the legal and policy framework by smugglers, and better protection of the migrants. Specific one-to-one MOUs and bilateral cooperation are required between all concerned governments for more effective responses to smuggling of migrants.

4.3 Protection and support for smuggled migrants and trafficked victims

Support for trafficked persons in Nepal is undertaken primarily by civil society organizations. The Ministry of Women, Children, and Senior Citizens supports and coordinates the rehabilitation of trafficked victims. Reintegration is challenging, as the factors underlying the original decision of a trafficked person to migrate are often still present on return.

There are currently no systems in place for protection and support of smuggled migrants. However, there are few government initiatives for protection of migrants who may be considering irregular routes to reach the labour destination countries for work. To take just one example, in a partnership project between the Government of Nepal and the International Organization of Migration (IOM), a Migration Resource Centre has been set-up for empowering potential migrant workers through providing comprehensive information. Assistance is also provided to support stranded migrant workers to return back home and their rehabilitation thereafter. Chapter 3 of the report outlines several steps taken by the Foreign Employment Promotion Board for migrants with valid work permits and those seeking to migrate abroad for work. However, none of these initiatives address smuggled migrants, who in any case do not seek assistance within the formal official mechanisms.

Irregular returned migrants or those who have migrated regularly but were rescued, and trafficked victims, expect effective financial rehabilitation and help through loans or support to entrepreneurship programs, from the government. Police officials stated the requirement in sex trafficking cases, for

366. During field visit to South Africa. 367. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Nepal

88 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL help to deal with health and psychological issues. Returned irregular female migrants and trafficked victims also seek better social and family reintegration.

There are media reports about small numbers of smuggled migrants returning to Nepal, but there are no support systems available to them. It is unclear what services are provided to them upon return.

Brazil – The Humanized Assistance Service for Migrants set-up at the Guarulhos International Airport, São Paulo, provides increased assistance to refugees, asylum-seekers and stateless persons arriving at the São Paulo airport. The Service was set-up in 2015 as a joint venture of United Nations High Commissioner for Refugees, the Attorney’s Office for Human Rights of the Federal Prosecutor’s Office, the National Committee for Refugees (CONARE), National Secretariat for Justice, and the Public Defender’s Office of the Federal District.

Upon arriving in Brazil, many foreigners are held at the airport because their legal status prevents them from being accepted. On arrival, they stay in an area within the airport known as the ‘connector’. People entering via the ‘connector’ have the right to an asylum application procedure. The Humanized Assistance Service officials provide the first interaction to all migrants/ refugees, whether arriving with visa or without any valid entry papers. The Humanized Assistance Service office provided interesting insight into the migrants arriving from Bangladesh and Nepal.

Brazil also has an elaborate system of protection of migrants, asylum seekers and refugees. As has been stated earlier, the country has had until recently, a fairly open migration policy, and anyone can claim asylum/ refugee status after reaching Brazil, whether through regular or irregular routes. The government works together with the Center of Reference and Assistance to Migrants (CRAI), and NGOs, such as, CARITAS and Missão Paz in São Paulo; and IMDH – Migrations and Human Rights Institute in Brasilia Federal District – for provision of comprehensive services to migrants. Migrants are allowed to work during their waiting period for grant of legal status.

Colombia - On SOM, the government provides basic services such as food, sanitary facilities and temporary shelter of up to 36 hours in ten Transitory Migration Halls (Salas Transitorias de Migración) across the country368. After 36 hours, the smuggled migrants are dropped off at the exact place from where they were found at the borders. No action is taken against smuggled migrants, and no further services are provided in Colombia369.

South Africa - Protection and support to smuggled migrants in situations of vulnerability is currently not covered by any policy in the country. The Immigration Act no. 13 of 2002, as subsequently amended in 2004, does not focus on smuggling of migrants as a large-scale organized crime activity. Rather, it criminalizes individual irregular migrants and foresees repatriation as a priority370.

368. Quoted by a government stakeholder from Nepal. 369. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT Colombia 370. Information received by GLO.ACT Project Officer Nepal during field visit to Colombia in 2018.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 89 90 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL MIGRANTS AND TRAFFICKING IN PERSONS MIGRANTS RECOMMENDATIONS TO PREVENT SMUGGLING OF TO RECOMMENDATIONS

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 91 5. RECOMMENDATIONS TO PREVENT THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS

The smuggling of migrants from Nepal (and from other South Asian countries, namely, Bangladesh and India) is a complex and multifaceted phenomenon, thereby defying simplistic solutions. Irregular migration for employment in the more sought after destination countries, is somewhat easy to explain and understand. Being smuggled to US or Europe by spending huge sums of money, which would otherwise provide for a fairly comfortable life within Nepal, again defies any one-dimensional explanation.

However, smuggling of migrants from Nepal to the US or Europe is here to stay, has stopped being unusual, and is generally accepted as a means to reach these destinations. It would be fair to mention, however, that smuggling remains the last resort of the migrant, after exploring other regular means and methods.

Issues to consider with regard to smuggling of Nepalese migrants, relate to their human rights, their protection, the prosecution of smugglers, and cooperation between origin, transit and destination countries. Thus, any response to the smuggling of migrants requires a comprehensive and multi- dimensional approach that aims to (1) prevent and combat migrant smuggling, (2) protect the rights of smuggled migrants, and (3) encourage international cooperation.

For the countries under study, tackling migrant smuggling is a low priority, and there remain many gaps and challenges to combating migrant smuggling and protecting smuggled migrants.

The following recommendations are based on a situational analysis on the smuggling of migrants from Nepal to the Americas, Europe and South Africa; the legal and policy frameworks, and responses of Nepal, Brazil, Colombia, and South Africa; as well as on an analyses to the gaps and challenges that facilitate smuggling on the one hand and create no deterrence on the other.

The recommendations are directed primarily at different agencies of Nepal, but could be considered for implementation by Brazil, Colombia, and South Africa as well. Correspondingly, Bangladesh and India may also consider implementing these recommendations, since smuggled migrants from South Asia keep moving back and forth between these countries, and are found to use similar routes and smuggler networks.

The recommendations are targeted predominantly to tackle smuggling of migrants, and those on trafficking in persons are limited to trafficking of Nepalese to SouthAfrica and Kenya.

5.1 Join the international legal framework on smuggling of migrants and trafficking in persons

Some of the countries under study for this report have not signed and/ or ratified the two UN Protocols on Trafficking in Persons and Smuggling of Migrants. Joining the international legal framework on SOM and TIP is the first step towards a coordinated and comprehensive response to these transnational crimes, leading to implementation of these obligations into the domestic laws.

Recommendations –

• Nepal should sign and ratify the 2 supplementing Protocols to the UN Convention Against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Smuggling of Migrants by Land, Sea and Air. • Nepal should sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. • Colombia may consider signing and ratifying the Protocol against the Smuggling of Migrants by

92 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Land, Sea and Air.

5.2 Develop and strengthen national migrant smuggling laws and policies

Smuggling networks take advantage of the lack of specific migrant smuggling legislation, and none of the countries under study have a specific, and all-inclusive legislation on smuggling of migrants. This also means that smugglers operate with impunity in these countries without any fear of prosecutions.

The development and/or strengthening of national laws on migrant smuggling, and the development of comprehensive policies to prevent and combat the smuggling of migrants, must be achieved in line with measures that protect the rights of smuggled migrants. Article 16 of the UN Smuggling of Migrants Protocol contains several provisions that cover States’ obligations to ensure that smuggled migrants have access to basic assistance. Article 16(2) requires States parties to protect smuggled migrants from physical violence, while Article 16(3) calls on States parties to provide assistance to smuggled migrants whose lives or safety may be at risk. The Protocol further calls on States parties in Article 16(1) to offer protection and assistance measures that take into account the special needs of children as well as women.

Recommendations– • Nepal should develop and/or strengthen specific national law on migrant smuggling or incorporate provisions within existing laws, including components from the UN Protocol on Smuggling of Migrants, with special reference to defining smuggling of migrants, criminalizing smuggling of migrants and its related offences and aggravating circumstances, safety and protection of migrants, refrain from criminalizing the migrant who has been smuggled for the fact of having been smuggled/ refrain from charging a migrant as an accomplice to his or her own smuggling, and ensuring assistance in transit and destination countries. o National law should have clear definitions distinguishing TIP and SOM for purposes of law enforcement. o The organized crime perspective of smuggling of migrants needs to be focused upon and more investigations should be conducted to break the organized criminal networks and confiscate financial assets. o Enforcement should be achieved through enhanced litigation and legislative advocacy. • Colombia and South Africa may consider developing specific national law on migrant smuggling or incorporate provisions within existing laws, including components from the UN Protocol on Smuggling of Migrants; with special reference to safety and protection of migrants, refrain from criminalizing the migrant who has been smuggled for the fact of having been smuggled/ refrain from charging a migrant as an accomplice to his or her own smuggling, and ensuring access to assistance. • Nepal should develop a National Plan of Action or national strategy on smuggling of migrants. The Plan or Strategy should specifically establish a sustainable reintegration policy and enhance the services provided for the reintegration of returned smuggled migrants, including psychosocial services and livelihood opportunities. • Brazil, Colombia and South Africa may consider developing national plans of action or national strategies on smuggling of migrants, especially for protection of smuggled migrants within their jurisdictions.

National laws, policies and law enforcement responses to migrant smuggling must achieve balance between the apprehension and prosecution of migrant smugglers, and the identification, protection, and assistance provided to smuggled migrants.

5.3 Strengthen international cooperation to prevent and combat migrant smuggling

At the international and regional level, a number of processes dealing with migration-related issues, including migrant smuggling, have been established. The Bali Process on People Smuggling,

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 93 Trafficking in Persons and Related Transnational Crime, 2002371, and the Jakarta Declaration on Irregular Movement of Persons, 2013372 are examples of such forums and institutions where States can engage in dialogue and share information on migrant smuggling. Nepal, Bangladesh, India, Afghanistan, Pakistan, Sri Lanka, and USA among other countries are members of the Bali Process. Research shows similar networks and routes being taken by South Asians to enter US. All these countries, already being part of this Process, can facilitate dialogue and cooperation and support measures that would contribute to comprehensive long-term strategies addressing the crimes of migrant smuggling and human trafficking as well as reducing migrant exploitation by expanding safe, legal and affordable migration pathways.

The Voluntary Reporting System on Migrant Smuggling and Related Conduct (VRS-MSRC) was launched by the UNODC Regional Office for Southeast Asia and the Pacific, in support of the Bali Process in 2013. The VRS-MSRC is an internet-based, secure IT solution to collect, share and analyze information on migrant smuggling, irregular migration and other related conduct373. This would be a good platform for countries in the South Asia region also to collect and share information so they can identify trends and develop policies to prevent and combat migrant smuggling. Of relevance to South Asia, Pakistan and US are already a party to this mechanism.

Engagement with such processes, which fosters close cooperation with third countries along the smuggling route, is essential for combating migrant smuggling and for ending the impunity of smuggling networks.

However, an important obstacle in preventing the smuggling of migrants in Asia is the varying level of engagement with regional and international processes and varying political will between and within countries, to ensure the development of coherent strategies, the implementation of comprehensive laws, the enforcement of relevant offences and the allocation of adequate resources to achieve this goal. More regional and international cooperation - particularly at the operational level - is needed to investigate and prosecute migrant smugglers, explore and analyze the levels and characteristics of this crime and develop policies and laws to address the many facets of this phenomenon. This requires strong political will and long-term commitment374.

Recommendations–

• Nepal should strengthen regional cooperation with Bangladesh and India (by also including Afghanistan, Pakistan and Sri Lanka) to tackle migrant smuggling and smugglers operating across borders, through effective implementation of existing SAARC mechanisms, and establishing joint task forces on SOM. • Nepal should strengthen bilateral cooperation with Bangladesh and India to tackle cross-border movements for purposes of migrant smuggling, use of passports by nationals of other countries for purposes of smuggling, and smuggling networks operating across borders, and develop Standard Operating Procedures as appropriate. • Countries of origin (Nepal, Bangladesh and India) to strengthen bilateral cooperation with countries of transit (Brazil, Colombia, Bolivia, Ecuador, Guatemala, Chile, Costa Rica, Panama, Mexico, Haiti, South Africa) and countries of destination (US, Canada, Portugal and other relevant countries of Europe, Russia, Kenya) for better sharing of information on smuggling of migrants and for protection of rights of migrants within foreign territories. • Countries of origin, transit and destination to enhance the body of evidence-based knowledge to better inform policy-making; generate and share information on the modus operandi, routes, and economic models of migrant smuggling networks. • Nepal should have more effective criminal justice cooperation with Bangladesh and India through formal (i.e. mutual legal assistance) and informal means to maximize effectiveness, with a particular

371. UNODC (2016) Needs Assessment – Responding to Trafficking in Persons and Smuggling of Migrants, GLO.ACT South Africa 372. Retrieved from: https://www.baliprocess.net. Accessed: 29 December 2018 373. Retrieved from: https://www.kemlu.go.id/en/berita/siaran-pers/Pages/Jakarta-Declaration-on-Addressing-Irregular-Movement-of-Persons.aspx. Accessed: 29 December 2018 374. Retrieved from: https://www.unodc.org/southeastasiaandpacific/en/vrs-msrc.html. Accessed: 29 December 2018

94 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL emphasis on joint operations and sharing of information. • Nepal should initiate steps with India towards ensure effective functioning of the special immigration desk at the Indira Gandhi International airport at Delhi, India by conducting period audits of its impact in curbing irregular migration by Nepalese passport holders. • Nepal should foster cooperation with police, border and immigration agencies of Brazil, Colombia (and other countries of transit in Latin America) and South Africa to have more effective criminal justice cooperation through formal (i.e. mutual legal assistance) and informal means, with a particular emphasis on sharing of information. • Nepal along with Bangladesh and India should strengthen regional and international cooperation to combat migrant smuggling through engagement in the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime. • Nepal should make the protection of smuggled migrants and trafficked victims a priority concern for diplomatic missions in transit and destination countries and strengthen access services and consular assistance, ensuring that diplomatic missions are adequately staffed and that staff are properly trained to deal with all issues faced by smuggled migrants and trafficked victims. • Nepal should develop SOPs for its Embassies and Consulates in transit and destination countries for consistent and standardized procedures for identification, protection, and return of smuggled migrants and trafficked victims to Nepal. • Brazil Embassies in Delhi, India; Kathmandu, Nepal and Dhaka, Bangladesh and the Colombian Embassy in Delhi, India may consider conducting training and capacity building of its embassy staff to detect potential cases of human trafficking and migrant smuggling from SouthAsia.

5.4 Enhance the collection, sharing and analysis of migrant smuggling and human trafficking and related data

Knowledge of migrant smuggling from Nepal among the key stakeholders is inadequate, whereas there is widespread and comprehensive information on trafficking in persons. Brazil and Colombia acknowledge the arrival of smuggled migrants into their countries, whereas South Africa had no such information or data on smuggled Nepalese migrants. This is largely due to the clandestine nature of the crime, but also due to inadequate data collection. There remains a lack of quantitative, evidence- based research on the size of migrant smuggling flows from Nepal (including Bangladesh and India).

In the absence of special laws on SOM, the cases get registered under provisions of penal codes, and therefore, may not get reflected as smuggling cases. This lack of data on the magnitude and scale of the problem greatly constrains the ability of government authorities to develop evidence- based policies and implement strategies to combat migrant smuggling.

Recommendations –

• Nepal should have systems for collecting, sharing and analyzing migrant smuggling and human trafficking data. • Brazil, Colombia and South Africa may consider having databases for collecting, sharing and analyzing migrant smuggling data and sharing it with Nepal (Bangladesh and India). • Relevant government agencies should develop efficient systems, guidelines and parameters for collecting, sharing, and analyzing such data. • Nepal should conduct more focused research on the links between migrant smuggling and other crimes, such as trafficking in persons, drug trafficking, terrorism and others. • Brazil, Colombia and South Africa may consider conduct more focused research on the links between migrant smuggling and other crimes, such as trafficking in persons, drug trafficking, terrorism, and others. • Nepal (Bangladesh and India) to consider joining the UNODC Voluntary Reporting System on Migrant Smuggling and Related Conduct (VRS-MSRC) for creating strategic knowledge to inform evidence-based policy formulation at national (and regional) level. • Brazil, Colombia (other transit countries of Latin America) and South Africa may consider joining the UNODC Voluntary Reporting System on Migrant Smuggling and Related Conduct.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 95 5.5 Improve the investigation and prosecution of migrant smugglers and smuggling networks

The covert nature of migrant smuggling, its cross-border aspects, plus vast jurisdictional spread of witnesses and evidence across several countries, makes apprehending migrant smugglers, investigating migrant smuggling crimes and conducting prosecutions challenging. The absence of specific legislation with clear definitions complicates this process. Add to that the uneven knowledge and understanding among law enforcement officials and other stakeholders of the differences between TIP and SOM – as well as, the morphing of SOM into TIP and vice the versa. Law enforcement does perceive trafficked persons as ‘victims’, but that perception may not extend to smuggled migrants, who are considered to consensually participate willingly through the whole process.

Adding to the challenges of investigations are the advances in communications technology and the growth of social media, which have changed both the decision-making process for smuggling (during recruitment) and the processes by which people are smuggled (during transit). One can also decipher trends in the use of technology and social media by migrant smugglers and smuggled migrants, which have implications for approaches to combating smuggling. Investigators need to strengthen their understanding of how smugglers are using technology and how to incorporate that understanding into their investigations, engaging in cyber investigations and using computer forensics where appropriate.

Involvement of other agencies, such as, border control and immigration, along with the police is the key to combat smuggling. This is particularly applicable to countries of transit, because the initial journey of the Nepalese migrant - whether to India/ Thailand/ Qatar/ Brazil/ Ecuador/ South Africa/ Kenya or other countries, may be through regular routes and proper documentation.

Law enforcement agencies also need to focus their resources on investigating the financial components of migrant smuggling and human trafficking cases. This includes investigating the fees made to smugglers, the profits of smuggling enterprises, and ‘following the money’ to assess how, and to what extent, proceeds of migrant smuggling crimes are laundered and distributed. However, all of these elements may not be found in any one country, thereby requiring cross-border regional and international cooperation to complete the full chain of the financial trail of smuggling profits.

Recommendations –

• Nepal Police should set-up and strengthen specialized operational units with high-level investigative and prosecutorial skills for trafficking in persons and smuggling of migrants. o The Women and Children Service Centres at the Criminal Investigation Department in Nepal could be considered for developing into such specialized units. o Brazil, Colombia and South Africa may consider setting-up specialized operational units for cases on smuggling of migrants. • Nepal Police should develop more intelligence-led investigative capacities in tackling criminal networks. o Develop and foster enhanced investigative capacities on the financial aspects of migrant smuggling and trafficking in persons’ networks. o Nepal Police to improve understanding of how communications technology is being used to facilitate trafficking in persons and migrant smuggling and strengthen the skills and knowledge of investigators around cyber investigations. o Develop technology oriented and adult-learning pedagogical approaches towards building institutional training programmes on trafficking in persons and smuggling of migrants for police, prosecutors and judicial officers. o Enhance understanding through increased capacity-building, including at the local level, concerning smuggling of migrants and trafficking of persons, especially around issues of ‘consent’ of victims.

96 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL o Create country specific Training Manual on smuggling of migrants to build capacities of police, prosecutors and judicial officers. • Nepal should enhance cooperation between law enforcement, judges and public prosecutors for more effective investigations, prosecutions and trials in trafficking in persons and smuggling of migrants’ cases.

5.6 Develop strategies to address prevention of migrant smuggling through targeted awareness programmes

It is clear that until the push factors that give people reason to leave their country are addressed, there will always be a market for opportunistic smugglers. Migrants, though active participants and willing beneficiaries of the smuggling process, are not perceived as ‘vulnerable’ victims of trafficking in persons. They shell out huge sums of money as fees, financing their journeys by selling lands, property, borrowing from relatives, friends, and through other means. They are thus, not as ‘poor and vulnerable’ as trafficked victims.

Even if they are aware of the risks involved, it is often seen that they are not aware of the exact nature of the risk, abuse, violence and hardships that they may have to encounter in the long circuitous journey towards their final destination.

Recommendations – • Nepal should develop stringent controls by relevant government authorities of placement agencies, travel and tour operators, educational consultancies, and others that facilitate smuggling of Nepalese migrants. • Nepal should develop holistic approaches to create public awareness of human smuggling and its consequences at smuggling hotspots to empower people and communities from making unwise choices and decisions. o Create publicity campaigns involving multiple stakeholders, using all forms of media, through focused messaging informing potential migrants of the grave risks, violence, exploitation and even death during the multi-country circuitous routes that they will be pushed through by the smugglers. o Include information on the serious difficulties as an irregular migrant in the US/ Europe without any legal documentation and the forced labour/ sexual exploitation that the person may have to endure. o Develop case studies as examples to convey the messages as above. Consider using returned/deported migrants to narrate their stories through all forms of media and ensure widest possible dissemination.

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 97 ANNEXURE 1 - CASE STUDIES

Case Study 1: Smuggling of Nepalese women to Haiti

Three Nepalese women in the age group of 26-30 years were contacted by smugglers in Nepal and promised migration to the US. Their families owned land in in the Terai plains of Nepal, where price of land near highways/ freeways was very high. The families of 2 of these women together ended up paying a total amount of 1 crore, 28 lakhs Nepali Rupees (NR) (approximately USD 109,234). The third woman paid the smugglers 60 lakhs NR (equivalent of USD 51,203), although the smugglers initially claimed it would only cost her 30 lakhs NR (USD 25,601). The total cost incurred by the 3 women as fees to the smugglers for this journey was approximately USD 128,000. Before leaving Nepal, the smugglers were paid 12 lakhs NR (USD 10,240) by each of the women. At different stages of the journey/ stay, the smugglers kept demanding money in installments.

The women from Kathmandu accompanied the agent to New Delhi, India and their onward route was to – Bangkok, Thailand, Malaysia, and finally to Singapore, where they applied for student visa to Mexico, which was rejected. In each of these countries, the smugglers had already fixed up the hotels, and someone was always in touch with the smugglers and in most cases, they also had a Nepali handler.

Since this plan failed, they were brought back to Delhi where they stayed for 1.5 months, and started a new plan. The smugglers told the women that it would be easier to go to US as movie actors and they would plan a film shooting in Haiti, where they would shoot on an island and then pretending to do a film shoot, they would try and reach the US by ship/ boat. The smugglers made new fake documents identifying the women as movie actors. The new route taken by the 3 women was – New Delhi, India - Russia, Moscow – Bogotá, Colombia – Dominican Republic – Haiti.

The smugglers apparently waited for more persons to join in and for the group to get bigger before they left New Delhi. One of the women traveling with this group was ‘S’, and seemingly she traveled with this group for free, as she was one of the recruiters. ‘S’ had been apparently a victim of smuggling prior to becoming a smuggler herself.

Whilst their stay in the Dominican Republic, the 3 women started getting calls for the first time, from the main handler ‘AB’, who would tell them to have patience and that they would be soon taken to US. The women now moved to Haiti and lived there for 3 months, after which, they were put on a boat to sail from Port-au-Prince to Miami, Florida.

On this boat were the 3 women from Nepal, ‘S’, plus 2 Indians, 4 women from Sri Lanka, 1 Bangladeshi male, and 1 male from Mongolia. This boat was at sea for 18 days and in the absence of food, water and the intense heat, ‘S’ died on the boat, and her body was thrown into the sea. The Bahamas Navy saw the drifting boat and rescued them all. The Bahamas government contacted the Nepal Embassy in the US, and they in turn contacted their families, who then informed the local police in Nepal. The families once again paid for their travel to come back home to Nepal.

After coming back the women did not contact the Nepal police, but got in touch with the first agent who had offered them the opportunity to go to the US. After reaching their families, the women did not want to stay at home due to shame and stigma. The recruiting agent(s) in Nepal hired an apartment and women went to live there. After the police got in touch with them, both the women and their families refused to file a formal complaint, even though by now a total amount of USD 128,000 was already paid to the smugglers/ traffickers375.

The women by now were also suffering from the ‘Stockholm syndrome’ and repeatedly told the police that the agent was a nice man who was helping them, by paying the rent of the apartment and he was

375. UNODC (2018) p. 126

98 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL also trying to get their money back. Meanwhile, the girls were still trying to go back again to the US through any means, and the families paid up another 10 lakhs NR (USD 8,533) to the Nepal agent.

The women told the entire facts of the case as above in detail to the Nepalese police upon their return, but they continued in their refusal to file a formal complaint. The Central Investigation Bureau (CIB) was notified by the Metropolitan Police Crime Division of the Kathmandu valley due to the international nature of this case, even though the women and their families did not want to complain at all. The police continuously counseled them for 6 months but they were steadfast in their belief that that the agent was “helping” them, that they did not want to file a police complaint as the agent had promised to give their money back. They were not interested in investigation and prosecution but in ensuring that the money was returned back to them and their families.

The police found in their investigation, that the local agent of Nepal, in this case, was another man named ‘S2’ who was a notorious trafficker and had allegedly duped and trafficked 500 women and had made about 8-10 crores NR (USD 1,092,747). However, in the police records, not even 2 percent of his victims/ or their families had come forward to lodge a formal complaint.

The police in this case, continued to counsel the family also through village elders and members of the community to file formal police complaints. They faced stiff resistance when one of the returnee women stated that she would commit suicide if she did not get her money, but was still unwilling to lodge a formal complaint. In this particular case, the resistance on the part of the women also stemmed from the fact that ‘S2’, the local agent, had promised them that he would send them to US, through a different route, either through a ‘D’ visa or a student visa.

The police meanwhile took 2 months to investigate this entire case and finding more information on the international link, as a man called ‘AB’. They had already known him to be the kingpin of the entire trafficking/ smuggling network376 and also being involved in many other cases. His modus operandi was that he claimed he was making a film, and hired 22 people as actors, and collected 3 lakhs NR (about USD $4,100) from each of them towards the making of the film. When the film was not made, subsequently the money was returned to people for gaining their trust. In Myagdi district of Nepal, a principal of a school had collected this money for ‘AB’ for many years, because people readily believed a school principal as a reliable man. Later ‘AB’ also duped him. For another film, which was announced by ‘AB’, again money was collected from many people under the garb of offering them roles in the film. Many people gave 5 lakhs NR (USD 6,829) each and were defrauded later.

During investigation of this case, the police also came to know of the fake marriage racket that he was involved with. ‘AB’ frequently called Nepalese girls to Bangkok, and from there took them to Canada on a tourist visa/ or sponsored them as his care-takers due to his disability. Upon reaching Canada, he would marry them on the ground that he required a wife to take care of him due to his disability. From each girl whom he had purportedly ‘married’, he had allegedly taken 40-50 lakhs NR (USD 54,637-68,296). After some time he would divorce them claiming that they were ‘discriminating’ against him and not taking care of him in his disabled state. This was his other modus operandi of trafficking women through fake marriages, and getting them a permanent residency in Canada. The police have information that he had conducted 7 such fake marriages to date.

Currently377 ‘S2’ and 4 other Nepalese are in jail awaiting trial. The case has been charge-sheeted in court for trial. Interpol has been requested via official channels in Nepal for arresting ‘SG’. Since he is a holder/ citizen, the extradition process is also ongoing, without much progress.

Important findings from this Case – • Local recruiters are almost always the first point of contact to lure people into reaching foreign shores, most often with the promise of taking them to the US.

376. Author’s note- In narrating this case study, the Nepal police repeatedly referred to them as smugglers/ traffickers interchangeably. There did not seem to be a clear separation in their language on these two terms – traffickers and smugglers. 377. Retrieved from: https://www.youtube.com/watch?v=DHlsiV-i4tw&t=86s. Accessed: 29 November 2018

MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL 99 • Offering women roles in films, and through that, the promise of taking them to the US is a new kind of modus operandi. • Families continue to spend huge amounts of money, which far exceeds the initial promised fees to be paid to smugglers for reaching foreign shores. • Smuggling of migrants often transcends and overlaps with trafficking in persons.The police were however, not provided any information by the victims on whether they were put through any kind of sexual exploitation. But the police believe that living in foreign countries for weeks and months – the victims must have surely been put to some kind of work – either into prostitution or into forced labour. But there was no mention of anything by the victims themselves, so this remains an assumption by the police investigating this case. • Stockholm syndrome is very strong among the victims, who refuse to name the perpetrators and lodge formal complaints with the police. • Victims are not interested in prosecution and jail for the perpetrators, but are heavily inclined only towards getting the money, which they had paid to the smugglers, back. Even in trafficking cases, the victims prefer to get a quick ‘compensation’ from the perpetrator/ trafficker, rather than go through the court processes. • The desire to migrate to foreign countries, especially the US, is so high that despite being cheated of a huge amount of money, and being put through various kinds of hardships in foreign lands, the women victims still wanted to believe the same smugglers, who promised them a second attempt of going to the US. • Haiti is emerging as a new transit point for Nepalese being smuggled to the US. In this case, the victims were made to stay there for many months. • This case has components of smugglers accessing air and sea routes to transport victims. • The transnational nature of the crime, with the prime kingpin being based in Canada is one of the big stumbling blocks in carrying out such an investigation to its logical conclusion. Extradition procedures are always time consuming, Interpol processes are also delayed and slow, and bilateral cooperation does not translate as well into practice as it does on paper. The perpetrator is someone who has built an entire façade around his handicap, his being a winner and achiever and a very respectable person – both in Nepal and in Canada.

Case Study 2: The Case of Trafficking to Kuwait

Sindhupalchowk is one of the seventy-seven districts of Nepal. It is a district long known and prone to the trafficking of women and children. Women from here are mostly lured for domestic work and for commercial sexual exploitation. They are often taken for domestic work via India to Dubai and Kuwait.

A couple used to work in a garment factory in Sindhupalchowk. The husband wanted to go abroad and work to earn more money, but was medically unfit. The agent that they were consulting offered to send his wife, ‘CD’ for work out of Nepal. After the couple agreed for the wife to go and work abroad, the agent paid all required money for processing the visa and buying the air tickets.

The couple was taken together to India. After about a months stay in New Delhi, the men informed the husband that ‘PT’ was being sent first to Dubai and then to Kuwait. However, she was taken straight to Kuwait accompanied by a Nepali man, where a Kuwaiti and a Nepali man received her. She saw the Kuwaiti man give money to the Nepali man who had accompanied her from New Delhi. ‘PT’ was then taken to a Kuwaiti home. Reaching there she realized that she was actually sold for prostitution. In the first Kuwaiti home, 2 men sexually exploited her for 5-10 days; she was beaten and tortured when she resisted. The Nepali agent who had received her at the airport and was based in Kuwait would also visit the house, and she would plead with him to send her back to Nepal.

After about 10 days, she was taken to another house, and after that, to 4 different houses, where she was kept for 10-15 days each time and was subjected to sexual exploitation.

Finally, she was able to contact her husband in Nepal over phone, who went to the Metropolitan

100 MULTI COUNTRY STUDY ON THE SMUGGLING OF MIGRANTS AND TRAFFICKING IN PERSONS FROM NEPAL Police Division to file a complaint. The police contacted the Kuwait Consular Office in Kathmandu. Help was sought from an NGO in Nepal as well as in Kuwait to identify the house and location so the police could draw a plan to rescue ‘PT’.

Since the would not have had proper permissions without following due procedures to raid homes suspected of holding the victim, the local NGO in Kuwait and the Nepali consular worked together with the police. ‘PT’ was called on the telephone, and asked to provide clues to identify the house where she was being held. Soon enough she was contacted again by the NGO and asked to step outside the house so that she could be rescued. After she stepped out of the house, the Kuwait police and the Kuwaiti NGO rescued her from the 4th house where she was held in captivity.

After coming back home to Nepal, the victim filed a complaint with the local police. After carrying out their investigation, the police identified the main trafficker, the local agent of Kathmandu and different men who contacted her in the village, and the other person in Kathmandu who accompanied her and her husband to New Delhi. In New Delhi also 2 people were identified, one a Nepali and the second, an Indian. It also transpired that the Nepali agent in Kuwait had an office dealing in manpower placements, which he used to run with his wife.

The police was also able to piece together the modus operandi of this gang. The ‘recruiting’ agent in Nepal spotted women considered attractive, and the New Delhi agent screened these women to decide which country they should be sent to. The looks of the woman decided the country where she would be trafficked for sexual exploitation. In this particular case, since ‘CD’ was a beautiful young woman, she was quickly sent to Kuwait without much waiting in New Delhi.

During their investigation, the police also discovered that women in their late 20s and 30s were being trafficked/ smuggled to Iraq, Oman, Turkestan, Kyrgyzstan, and Tajikistan, mostly for sexual exploitation. The much younger, considered more attractive, were sent to Kuwait. The police also found that the agent in New Delhi had albums of photos of women on his mobile. Women were primarily promised jobs of domestic work, before they were sent to these countries.

The Nepal police got an Interpol Red Corner Notice issued and got the accused in Kuwait – ‘SL and ML’ arrested and brought back to Nepal. The offender couple is currently378 in jail, and their trial is ongoing, but the verdict is awaited.

378. As on October 2018.

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